Elements of Ecclesiastic Law 1895 9 Ed

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ELEMENTS

ECCLESIASTICAL LAWCOMPILED WITH REFERENCE TO

THE LATEST DECISIONS OF THE SACRED CONGREGATIONS

OF CARDINALS.

ADAPTED ESPECIALLY TO THE DISCIPLINE OF THE CHURCH IN THE

UNITED STATES.

REV. S. B. SMITH, D.D.,

FORMERLY PROFESSOR OF CANON LAW, AUTHOR OF "NOTES ON THE SECOND

PLENARY COUNCIL OF BALTIMORE," "COUNTER-POINTS IN CANON LAW,"

"NEW PROCEDURE IN CRIMINAL AND DISCIPLINARY CAUSES OF

ECCLESIASTICS," "COMPENDIUM JURIS CANONICIi"

"MARRIAGEPROCESS," ETC., ETC.

Vol. I.

ECCLESIASTICAL PERSONg)( |_|BRIS

. ST, BASIL S SCHOLASTIC/

NINTH F.nTTTO*Q . ^7fl 5""L-

CAREFULLY REVISED BY THE AUTHOR.

NEW YORK, CINCINNATI, CHICAGO :

ZIGER BROTHERS,PRINTERS TO THE HOLY APOSTOLIC SEE.



Imprimaturs to the Sixth Edition.

Nf I tftiatet.

H. GABRIELS, S.T.D.,

Censor Deputatut.

MICHAEL AUGUSTINUS,

ArctiiepiscopusNeo-Eboracensis.

DATUM NEO-EBORACI,

DIE 14 JANUARII, 1887.

*GULIELMUS HENRICUS,

Archiepiscopus Cincinnatensis.

DIE 17 JANUARII. 1887.

DEC "3 1954

Copyrighted, 1887, by BENZIGER BROTHERS.



Imprimatur to Former Editions.

Xtfjil (Dtistat.

REV. S. G. MESSMER, S.T.P.,

Censor Deputatus.

IMPRIMATUROF HIS EMINENCE THE CARDINAL ARCHBISHOP OF

NEW YORK.

Jraprittmitm

JOANNES CARD. McCLOSKEY,Archiepiscopus Neo-Eboracensis.

DATUM NEO-EBORACI,

DIE 25 MA&TII, 1877.





to former ISMtions.

ARCHBISHOP S

HOUSE, WESTMINSTER,S.

W., Apr.7, 1881.

Rev. and dear Father: I have to thank you for sending me a copy of yourwork on the

" Elements of Ecclesiastical Law." On receiving it, I at once

examined certain parts to which my attention has been lately directed, and I

found the treatment of them singularly full and precise. The book, therefore,

will be, I believe, of much use in Seminaries and to the Clergy. And I will

not fail to make it known.

The new Hierarchies and the Churches of the New World are under con

ditions so totally unlike the old countries in centuries past, that we need a" Novum Jus

"

by the application of old principles to a new state,

every blessing prosper your labours.

I remain, Rev. and dear Father, yours faithfully in Xt.,

HENRY E., CARD.-ARCHBISHOP.

Of Westminster.

BIRMINGHAM, March 19, 1881.

DEAR REV. SIR :

On receiving your"

Elements of Ecclesiastical Law "

I put 2t into thr

hands of the Theological Professor of one of our Seminaries. He has read it

for me, and, 1 am glad to say, confirms the prinia facie judgment I had formed

of its utility for ecclesiastical students, as well as of its learning. As I think

youwill like to see his letter, I inclose it.

Thanking you for the gift of the volume, I am. Rev. Sir,

Your faithful servant in Xt,

JOHN H. CARD. NEWMAN.

{Letter of the Theologian appointed by His Eminence, Cardinal Newman, to examine

the ELEMENTS.]

I4th March, 1881.

MY LORD CARDINAL :

The " Elements of Ecclesiastical Law,"

by

Dr. Smith, is in

my opinionnot

only a very interesting, but also a most iiseful book for Students and Priests

here as well as in America. The chief good points of the book I take to be :

I. The selection of material, i. e., the leaving out a great deal of archaic infor

mation which one usually meets with in such books, and giving just what is

necessary for our times and circumstances.

II. His method, i. e., ist, the order in which he puts the general principlesor the old Common law of the Church first, and then the special Ecclesiastical

law of America, England, or Ireland, makes a good and clear picture of the

American Church as part of the old Mother Church and still on the other handas a new creation of our own times 2d, the manner in which he proposes the

matter in questions and answers, is catechetical, and makes things very concise

and clear. One sees the author has but one purpose throughout, i, e to beuseful to his readers.

III. The author constantly refers to the best authorities for his statements

and conclusions, and the book has been examined by Cardinal Simeoni s Con-

suitors, whose suggested corrections are embodied in the 3d edition, a~nd it

bears the stamp of approbation by many Bishops and is consequently on mereexternal grounds a very reliable book.

IV. What makes the book also very interesting and useful is the manyreferences to the Schemata Vaticani Conci/ii, or proposals made by Bishops to

bring about a change, revision of the Corpus juris, and he gives many instances.

V. With a few more additions as regards England, the book might be clas

sical for this

country;

anyhow,there is no book that would better meet our

wants at present. I hope it is a little spur for students as yet there is nosuch thing as Canon law in our seminaries, and I believe Priests at large donot care for it, or think they can do without it. Any one who reads Dr. Smith



on Vicars General, Parish Priests, Chaplains and Confessors, or also on Bish

cps, will find out his mistake.

As Manuals or Handbooks are generally tedious, it is a great thing to say

that Dr. Smith s is not tedious. I shall recommend it to our students here as

that book which fills

upa

gapin our theological education, and will be very

useful on the mission. I have the honor of remaining

Your Eminence s humble servant,

V. T. SCHOBEL.

LONDON, ONTARIO, March 3d, 1881.

Rev. and dear Sir: As your work entitled "Elements of Ecclesiastical

Law," has been revised at Rome and approved by many distinguished Prelates,

it cannot fail to command general confidence as to its accuracy and trustworthi

ness. It affords me pleasure to add my Commendation to that given it by so

manylearned Bishops and Canonists.

Believe me to be, Rev. and dear Sir, yours sincerely,

i* JOHN WALSH, Bishop of London.

TORONTO, March 5, 1881.

My dear Doctor Smith : Many thanks for your excellent treatise on the

elements of Ecclesiastical law. It is a work which was a long time needed,

and yet, it comes in good time. It will be read by many ecclesiastics with

much profit, and will save the Bishops a great deal of trouble, as the priests

will be more acquainted with the duties and responsibilities of their Bishops, as

well as their own. Besides an acquaintance with the forms of procedure, incases of delinquency, will prevent many mishaps. You have indeed rendered

a great service to the Catholic Church in America, and your submitting the

work to the Roman Consultors will give it a title to great authority. Receive,

my dear Doctor, the expression of my high esteem and consideration.

Yours very faithfully in Xt,

t JOHN JOSEPH LYNCH,Archbishop of Toronto.

ST. JOHN, N. B,March 2ist, 1881.

Rev. dear Sir : I have to thankyou

for a

copyof

yourwork,

" Elements

of Ecclesiastical Law." It is a useful and valuable work, and having besides

the approbation of the Propaganda, must prove an acceptable addition to the

ecclesiastical library. I am, dear Sir,

Faithfully yours in Xt,

J- J. SWEENY,Bishop of St. John.

*-*>

LOTJVAIN, March 29, 1881.

As regards a recommendation, Rev. and dear Sir, I think the best I can

give is to say that I have adopted the book as a text-book for my students.

J. DE NEVE, DOM. PRELATE,Rector of the American College, Louvain.



APPROBATION OF THE AUTHOR S ORDINARY.

DIOCESE OF NEWARK,

NEWARK, April 28, 1877.

DEAR DOCTOR :

I have heard with great pleasure that you have finished your work on

Canon Law, and that it has obtained the"

Imprimatur" of his Eminence Car

dinal McCloskey.

The study of the laws of the Church, in which the wisdom of the past is

embodied, is always interesting and useful, not to speak of the growing im

portance attached to such knowledge in our midst. I therefore congratulate

you on the good that you have done by compiling a summary of Canon Law,

from approved sources, and I sincerely wish you all the success which your

zeal and assiduity deserve. I remain, Rev. Dear Doctor,

Very truly, yours in Christ,

f MICHAEL,

Bishop of Newark.

This beautiful volume comes in proper time.

|F. N. BLANCHET,Archbishop of Oregon.

As the" Elements of Ecclesiastical Law" has the approbation of Cardi-

*al McCloskey and of the Bishop of Newark, I cannot refuse to tender my

approbation. fJOHN M. HENNI,

Archbishop of Milwaukee.

The voluminous work of Dr. Smith cannot fail to be useful to many

clergymen, those especially who do not possess already similar works. Yet

I do not pretend hereby to give a judgment or approbation of all parts of tho

work : I leave that to more competent persons.

|A. M. BLANCHET,

Bishop of Nesqually.

You are welcome to put my name among the admirers of Dr. Smith s

"Elements of Ecclesiastical Law." I would not commit myself to approval

of all its positions ;but in general I am glad to see such a work, and it

seems to be well done. I think, too, in this case, he did well to give it in

English. I would rather students should study their Canon Law in Latin.

But as there was no such work in the country before, it is well that this an

swers both for students and for other readers.

\ WILLIAM HENRY ELDER,

Bishop of Natchez.

I have carefully looked over the book entitled" Elements of Ecclesiasti.

cal Law," and I cannot but regard it as a most useful and timely publication.

The numerous references to standard authorities upon almost every question

of which it treats make the bookespecially

valuable.

f THOMAS L. GRACE,T Bishop of St. Paul



The "Elements of Ecclesiastical Law," by Dr. Smith, I find to be a

learned and useful work I hope that this really meritorious andsolid work will have a wide circulation. f JOHN J. HOGAN,

Bishop of St. Joseph,

An important and valuable addition to our Catholic literature, and I

hope the publishers enterprise and the reverend author s learned labors will

be appreciated by the Catholic public. I sincerely express my own most

hearty appreciation and thanks to author and publishers.

\ S. V. RYAN,

Bishop of Buffalo.

I have read with pleasure, and I hope with fruit, the work of Dr. Smith

on "The Elements of Ecclesiastical Law." I consider it the best elementary

>eatise on the subject I have seen;and enriched with its copious references,

directs the student who desires a more extensive course of reading. Dr.

Smith has shown in his work extensive, judicious, and conscientious study.

\ P. T. O REILLY,

Bishop if Springfield.

It is indeed a most useful work; clear, plain, and learned. It supplies a

great want. \ JOSEPH DWENGER,Bishop of Fort Wayne,

The work is a welcome addition to our libraries, well arranged, interest

ing in its matter and manner;and so necessary to the student of Theologj

that it is easy to predict for it the popularity it richly deserves.

| THOMASF.

HENDRICKEN,Bishop of Providence.

I read Dr. Smith s first book with pleasure, and his work on "

Elements

of Ecclesiastical Law," published with the approbation of his Ordinary, the

Bishop of Newark, and the"

Imprimatur" of the Cardinal Archbishop of NewYork, with even greater satisfaction. f E. P. WADHAMS,

Bishop of Ogdensburg.

I find the book very good, and approve of it quite cneenuily.

f RUPERT SEIDENBUSH, O.S.B.,

Bishop of St. Cloud.

I have been prevented from making such examination of Dr. Smith s" Elements of Ecclesiastical Law" as would make my opinion satisfactory to

myself. I can only rejoice with you that the commendations already received

render unnecessary to its success the good word. It has already the best

wishes of yours sincerely,f JAMES

AUG.HEALY,

vj Bishop ofPortland.



I am very much pleased with it. J. TUIGG,

Bishop of Pittsburgh.

An admirable work of its kind. It is a clear, concise, and, I think, an

entirely reliable exposition of the principles and leading provisions of those

parts of Canon Law of which it treats. It gives evidence of patient and

extended research, and of a sound and judicious criticism on the part of its

author, and it has, for American readers, the peculiar merit of throwing a

great deal of light on many necessarily unsettled canonical questions that

have arisen in this country. If I am not mistaken, it will be welcomed as an

excellent and much-needed text-book in our seminaries, and will give a

fresh impulse to canonical studies among the clergy generally.

Sincerely yours in Dmo.,

fj. O CONNOR,Vic. Ap. Neb.

REV. DEAR DOCTOR :

Having examined" Elements of Ecclesiastical Law," I am glad to say

that it pleases me very much.

It should be one of the chief objects of a writer on Ecclesiastical Law to

show what the universal Ecclesiastical Law is, and how far it is applied or

applicable to particular nations or countries; especially should he faithfully

adhere to the letter and spirit of the decisions of the Holy See. In these re

spects, you have, so far as I can judge, succeeded very well. While setting

forth the principles of the common law of the Church, you have, as far as its

applicability to this country is concerned, given due consideration to the pe

culiar condition of the Church in the United States. Your work, therefore,

is very practical, opportune, and useful, both to priests on the mission andto stu

dents in seminaries. The clearness and excellence of its method will ren

der its perusal not only instructive but also agreeable. Hence, while in mat-

ters freely controverted among canonists and theologians, 1 may not alwayj

coincide with your views, / sincerely congratulate you on the excellence of your

look and its adaptabilityto this country. I trust it will meet with complete

success. Truly yours,

A. KONINGS, C.SS.R.

The present work is an accurate summary of modern Canon Law in gen

eral, and of American statutory regulations in particular. Nearly all available

authorities have been made contributory to it, and the result is much like a

mosaic, in which the minute pieces of hard substances of various colors are

Carefully inlaid and harmoniously cemented together with a master s hand.

Indeed, this your mosaic will stand the test of ages.

Yours very respectfully,

F. J. PABISCH,

President ofMount St. Mary s of the West, Cincinnati.

vii







x Preface.

cy ecclesiastical jurisdiction, how it is acquired, how lost

and resigned. It therefore treats chiefly of the election of

the Sovereign Pontiff, of the creation of cardinals, of the ap

pointment, dismissal, and transfer of bishops, vicars-general,

administrators of dioceses, and of pastors, particularly in

this country. The third part treats, in particular, of the

powers and prerogatives of ecclesiastics as clothed with

authority in the Church. Hence, it points out the rights

and duties chiefly of the Roman Pontiff, of the Roman Con

gregations, of cardinals, legates, patriarchs, primates, metro

politans, bishops, vicars-general, administrators of dioceses,

pastors, and confessors.

It has been our endeavor to adapt the work to, and

hence we frequently quote from, the"Syllabus" of 1864:

the "Const. Apostolicae Sedis"

of Pope Pius IX., published in 1869, by which the censures

"

latae sententiae"

were limited; the latest decisions of the Roman Congrega

tions, especially those bearing on this country ; and, finally,

the Vatican Council. Besides quoting, wherever appropri

ate, the definitions of the Council of the Vatican, we have,

in their proper places, in connection with the subject-mat

ter, added various schemes (schemata] and proposals (postn-

lata) either discussed in or submitted to this Council. Theformer are drafts of decrees prepared before the assemblingof the Council by a special commission, appointed by PopePius IX. for that

purpose, and consisting of the most distin

guished theologians from all parts of Christendom; the

latter are motions made in the Council by bishops from dif

ferent countries. We quote these drafts and proposals, not

as though they had the force of dogmas or laws, but to

show what laws wouldlikely have been, or will be (if the

Council reassembles), enacted by the Council of the Vati

can. For both the schemes and proposals we are indebted



Preface.xi

to the excellent work of Rt. Rev. Dr. Martin Bishop of

Paderborn, entitled" Documenta Concilii Vaticani."

The method observed in the present volume is that of

Craisson in his celebrated" Manuale Totius Juris Canonici,"

Pictavii, 1872, ed. sa a work which was approved at Rome

and honored by a congratulatory letter from the Holy

Father. It seems scarcely necessary to state the motives

that induced us to make use of the English language in the

publication of a book like this. Many, if not most, of the

recent works on canon law are written, not in Latin, but

in the vernacular of the writer. Besides, it was thought

that numerous technical and, so to say, traditional phrases

so peculiar to works of this kind written in Latin might be

difficult of understanding, especially in a country like ours,

where ecclesiastical law has not as yet come to be universal

ly studied.

To cause the book to be received with greater con

fidence, and to make sure that it contained nothing contrary

tofaith, good

morals, and the commonopinion

ofcanonists,

we cheerfully submitted it to our ecclesiastical superiors.

Upon the report of the theologian appointed to examine

the work the"

Imprimatur"

which adorns the front page

was graciously granted by his Eminence the Cardinal Arch

bishop of New York.

The work, though of itself complete, does not embrace

the entire ecclesiastical law. We shall, please God, supple

ment it, at an early day, by two more volumes, which, togeth

er with the present one, will form a complete text-book of

canon law as adapted to the discipline of the Church in the

United States. An appendix is added, containing the"

C.

Ap. Sedis," the"

Instructio"

of the Propaganda regarding

public schoolsin

the United States recently sent to our

bishops, the profession of faith as amended by Pope Pius



x "

Preface.

IX., and the much-discussed decision of the Holy See as to

when persons excused from the precept of fast by age or

labor may be permitted to eat meat "

totiesquoties." We

humbly and unreservedly submit the work to the judgmentof the Sovereign Pontiff.

S. B. S.

PREFACE TO THE SECOND EDITION.

WE call attention to the principal alterations and addi

tions made in the present edition. For the sake of greaterclearness various Latin passages, that seemed obscure as

they stood, have been translated into English. Besides

other changes and additions, extracts from the laws of the

United States concerning matters under discussion havebeen added. Again, since the publication of the first

edition, the decrees of the Plenary or National Synod of

the Bishops of Ireland, held in Maynooth in 1875, havebeen published. This necessitated

several importantchanges. Finally, a number of supplementary notes havebeen added regarding the mode of quoting from the

Corpus juris, the Vatican Council, appeals, sentences ex

informata conscientia, etc., etc. We take thisopportunity

torespectfully express our very sincere thanks for the kind

letters of approval received from a number of prelates.

Wealso

beg to acknowledge the very valuable assistanceso

cordially extended to us by several eminent theologiansin the preparation both of the first and second editions ofthe present work.

Finally, wegratefully appreciate the

liberal patronage bestowed upon the work.o r> o

JANUARY r, 1878.



PREFACE TO THE THIRD EDITION,

REVISED. AT ROME.

IN presenting this third edition to the Reverend Clergy

and to Seminaries it seems proper that we should say some

thing in relation to the examination to which the"

Elements"

was submitted in Rome. The attacks made upon the work

from various quarters, as well as a desire to ascertain and

conform to the views entertained in Rome with regard to cer

tain questions, caused us to send a copy of the"

Elements"

to His Eminence Cardinal Simeoni, Prefect of the

Propaganda, with the request that it be thoroughly examined.

His Eminence was graciously pleased to accede to our peti

tion, and accordingly appointed two Consultors, doctors in

canon law, to examine the" Elements

"

and report to him.

The Consultors, after examining the book for several months,

made each a lengthy report to the Cardinal-Prefect, who

kindly transmitted both reportsto

us witha

recommendation that the suggestions of the Consultors be taken into con

sideration in our next edition. That we have scrupulously

conformed to His Eminence s .recommendation will be seen

from the corrections made in numbers 6, 21-35, ^9, 190, 191,

196, 203, 337, 338, 455, 460, 482, 483, 503, 504, 505, 535, 53$

659, and on page 433.

One of the reports is written in Latin, the other in Italian.

The former gives the result of the Consultor s examination

ziii



xiv Preface.

of the book itself; the latter deals with the criticisms made

upon it in several articles of the Catholic Universe of Cleve

land, O.* Both documents, together with a translation of

the Italian, follow on the succeeding pages.

While we do not pretend to construe these document?

into a positive approbation of our work by the Sacred Con

gregation of the Propaganda or its illustrious Cardinal-Pre

fect, no one will deny that the examination and report of the

Roman Consultors constitute a strong guarantee of the cor

rectness of our work and its conformity to sound ecclesias

tical jurisprudence.

Other changes of considerable interest and no little im

portance have been made in the present edition, chiefly in

regard to the status of Missionary Rectors and parishes in

this country, especially as determined by the instruction of

the Propaganda dated July 28, 1878, establishing Commis

sions of Investigation with us, as will be seen by a reference

to numbers 256, 259, 260, 261, 266, 294, 395,407,412,417,

418, 419, 420, 443, 645, 648.

In conclusion, we beg to apologize for the delay in the

publication of the second volume of the"

Elements." Wehope to be able to complete it in a year from now.

S. B. S.

ST. JOSEPH S CHURCH, PATERSON, N. J.,

Feast of the Immaculate Conception, 1880.

* These articles were afterwards published in pamphlet form under the

title"

Points in Canon Law," by Rev. P. F. Quigley, D.D. Our reply is en

titled"

Counter- Points in Canon Law."



PREFACE TO THE SIXTHEDITION.

SINCE the lact (fifth)edition of this volume was pub

lished, a very important event has taken place. We allude

to the holding of the TJiird Plenary Council of Baltimore, in

1884. This Council marks a new era in the history of the

Church in the United States. It is owing to the celebration

of this Council that, although the last edition of this volume

has been exhausted for some time past, we have delayed the

new edition till after the publication of the Third Plenary

Council, so that we might be able to embody in it the new

decrees.

The Second Plenary Council of Baltimore expresses, in

a number of places, the desire to introduce as soon as possi

ble the general discipline of the Church also here. This

desire has been, in a measure, fulfilled by the Third Plenary

Council of Baltimore. The legislation of this Council is

framed on the lines drawn by the sacred canons. The mis

sionary condition of the Church with us has, to a great ex

tent, passed away, except, perhaps, in the far West andextreme South. Consequently the peculiar and exceptional

laws which obtained formerly and which were adapted to

our missionary status have also, in a measure, passed away,

and given place to laws which, if not altogether identical

with, are nevertheless similar to and approximative of the

laws that govern the entire Church. The first great and

decisive step in the direction of the general law has beentaken. The second and perhaps last step will be made in



xvi Preface.

the next Plenary Council. All great, important, and radical

changes are, as a rule, brought about gradually,not of a

sudden. Under the wise legislation of the Third Plenary

Council, the Church of this country will expand and flourish

more wonderfully than ever. Hence, when the next Na

tional Council meets, it will find itself enabled to perfect

and crown the work so well

begun by

its predecessor.

The decrees of the Third Plenary Council, especially those

relating to the election of bishops, to diocesan consultors,

the irremovability of rectors, the appointment of irremovable

rectors bv competitive examinations, diocesan examiners,

the admission into a diocese, the exeat, regulars, the man

agement of seminaries, the form of trial in criminal and dis

ciplinary causes of ecclesiastics, derive a special weight andsignificance from the fact that they were proposed by the

Holy See itself, in the Conferences held at Rome in Novem

ber, 1883, between the cardinals of the S. C. de P. F. and

our prelates. In these Conferences the framework of the

legislation of the Third Plenary Council was drawn up.

This framework formed the basis of the Council s delibera

tions, and was, with some modifications, adopted and filled up.

The present volume has been thoroughly revised in accord

ance with the new decrees of the Third Plenary Council of Bal

timore. The main alterations rendered necessary by the new

decrees refer to the new mode of electing bishops, to the

new irremovable rectors, their appointment by concursus, and

their dismissal for canonical cause;to the present status of

the other rectors, who are not irremovable, the admission

into a diocese, and rights and duties of deputies for the

management of seminaries. All these questions are accu

rately explained. To facilitate references, the principal

places where these questions are treated are marked with

an index-hand.

We have also added, at the end of the book, an entirely

-new treatise, of great practical importance, on the neiv dioce-



Preface. xvii

san consultors as established by the Third Plenary Council of

Baltimore.

It will be seen from the front page that this work was

first published with the imprimatur of the late Cardinal

McCloskey. As the present (sixth) edition has been com

pletely revised and contains many very important changes

in accordance with the new legislation of the Third Plenary

Council of Baltimore, we have submitted it to His Grace the

present Archbishop of New York, in whose archdiocese it

is published. Upon the report made by the Very Rev. Dr.

Gabriels, President of St. Joseph s Provincial Seminary,

Troy, N. Y., -the censor appointed for this work, the im

primatur was given by the Most Rev. Archbishop.

We also feel greatly honored by the Imprimatur of His

Grace the Most Rev. Archbishop of Cincinnati, and we

gratefully acknowledge the cordial benevolence and gracious

kindness with which it was granted.

In a few months we expect to publish the new edition of

the second volume of this work. It will be completely re

vised, in accordance with the new form of trial laid down in

the last Instruction of the S. C. de P. F. Cum Magnopere of

1884. Besides, we intend to issue, simultaneously with the

second volume, a special and separate treatise on this new

form of trial. The third and last volume of these"

Elements"

will be given to the public a short time afterwards.

PATERSON, N. J., Feb. 20, 1887.



PREFACE TO THE SEVENTH EDITION.

THE unusual favor with which this work has been re

ceived both here and abroad has stimulated us to make it

still more worthy of this patronage. In the present edition

we have madeadditions and alterations which will make the

volume even more accurate and reliable than the former

editions. A number of printer s mistakes, which were over

looked in the previous editions, have been corrected in this

edition. Among other important matters, we have added

an interesting outline of the manner in which ourconsultors

and irremovable rectors proceed in electing bishops, as set

forth in the Third Plenary Council of Baltimore, and we showwherein our procedure agrees with or differs from that

laid down by the general law of the Church.

May 12, 1889.

PREFACE TO THE EIGHTH EDITION.

IN this new edition we have entirely rewritten the article

on the publication of ecclesiastical laws, especially Papal, em

bodying in our new article the teaching of the most recent

approved canonists. The chapter on ecclesiastical customs

has been in great part remodelled and improved. We have

also made considerable changes in the chapter treating of

the division of parishes, and of missionary quasi-parishes

with us, in Ireland,, England. Scotland, and other countries



Preface. xix

similarly circumstanced. The article on Papal Consistories

has also been completely rewritten, and we have added im

portant explanations on the manner in which the Sovereign

Pontiffs expedite the business of the Catholic world. These

new features, we hope, will render the present edition even

more useful than the former ones.

PATERSON, March 19, 1891.

PREFACE TO THE NINTH EDITION.

SINCEthe last edition of this

workwas

published,amost

important event has taken place in this country. We allude

to the establishment of the Apostolic Delegation, in our midst,

by our present great Pontiff, Leo XIII. Hence we have

thought it opportune to set forth, in this new edition, on

page 297 sq., at some length, and with as much accuracy as

possible, the origin and history of Apostolic Delegations ; their

various kinds ; their powers and prerogatives, whether by vir

tue of their general or special commissions, especially at the

present day; their support or maintenance ; the recall, resigna

tion, etc., of the Apostolic Delegates, Auditors, and Secre

taries;the office of the auditor and of the secretary of the

Apostolic Delegation.

We have also added, on page 231, a very important

recent decision of the S. C. de Prop. Fide, in regard to eccle

siastics assigning to laics pecuniary claims against other ecclesias

tics, for the purpose of bringing suit in the secular court for

the recovery of the claim.

Besides, on page 284, we have more accurately defined

the powers of the College of Cardinals during the vacancy of the

chair.



xx Preface.

Again, on page 288, we have completely rewritten the

article on the Roman tribunals, particularly the Apostolic

Penitentiary, Datary, Chancery, and Secretariate of Briefs.

Finally, we have added in the Appendix the Brief of

Pope Leo XIII. establishing the Apostolic Delegation in

this country.

These changes and corrections, we trust, will make this

new edition even more interesting than the former ones.

S. B. SMITH.

PATERSON, May 2, 1893.







REPORT AND ANIMADVERSIONS

Of the two Roman Consultors appointed by His Eminence Cardinal

Simeoni, Prefect of theProp-iv<*nda,

to examine the "Elements."

I.

ANIMADVERSIONES

IN LIBRUM CV1, TITULUS "ELEMENTS OF ECCLESIASTICAL LAW," BY REV.

DR. SMITH.

De memo plane insigni cl. Auctoris tam rriulta legi possunt testimonia in

fronte operis, ut siquid illis addere aut demere vellem, temeritatis notai- non

effugerem. Quod si spiritum ejusdem Auctoris cognoscere cup:

mus. praeter

alia

multn,sufficit

inspicere

ea

quae passim disputatde auctoritate Romani

Pontificis turn in genere, turn nominatim in materia concordatorum (n. 105, p ig.

Si sq.) ubi eidem Romano Pontifici veram. propriam et effectivam deroganc i

po estaiem asserit, quam quidem recentiores immerito ei abjudicant. Hue

etiam pertinent quae idem auctor libere praedicat dc Dominio Temporal; vn.

484, p;ig. 230), etc. Occurruni tamen nonnulli loquendi modi, qui non omni

bus aeque placere possunt : quos proinde (ut Superiorum desiderio satisfa-

ciam) infra excribarn, adjectis cum opus fuerit, brevissimis animadver-

sionibus.

I. (N 189 p. 82.)"

Hierarchia ecclesiastica nitione potestatis clericis col-

latae, dividitur in hierarchiam Magisterii, hierarchiam jitrisdictionis et hierar-

chiam otdinis ; siquidem ecciesiarticn potestas complectitur : i, potestatem

docendi; 2, gubernandi ; 3, obeundi sacras unctiones, idest exercencli

potestatem ordinis Quia vero hierarchia magisterii vtrtuafiter (sic) continetut

in hierarchia jurisdictionis,canonistae plerique omnes unice distinguunl

hierarchiam ordinis et jurisdictionis."

(N. 191, p. 84.) Ex hac parte quidam scriptores peccant excessu, dum affir-

inant potestatem jurisdictionis essentiality- differre a potestate ordinis ; quidam

autem defectu, asserentes ejusmodi potestates ne accidentaliter quidem inter

se distingui aut separari posse."

"

Accurata rei notio haec esse videtur : hieraichiam ecclesiae essentialiter

unam esse ;hierarchiam vero aut potestatem ordinis et jurisdictionis inter se

differre tantum in eo, quod sint formae aut modi (sic) unius ejusdemque

hierarchiae. Dum itaque binae potestates essentialiter disjunctae, separatae

aut distinctae non sunt, nihilominus separabiles sunt, adeoque saltern, acci

dentaliter ab invicem distinguuntur."

(N. 176, p. 87.)"

Distinctio ordinis et jurisdictionis a scholasticis haec as-

signatur, quod potestas ordinis respicit corpus Christi reale in SS. Eucharis-

tia, potestas jurisdictionis corpus mysticum i. e., fideles. Quae distinctio

XXIII



XXIV Consultors Report.

licet quoad substantiam legitima (though correct in the main), minium urgeu

non debet, ac si radicalem differential utriusque potestatis innueret."

"Nam quemadmodum in SS. Trinitate adsunt tres personae et una tantum

substantia ;ita tres dantur rami seu species hierarchiarum, idest potestas ma-

gisterii, potestas ordinis et potestas jurisdictionis ;et nihilominus nonnisi

un* dztur centra/is fotestas (sic) seu hierarchia. Igitur hujusmodi potestates

accidentaliter quidem, (sic) non radicaliter aut fundamentaliter ab invicem

distinguuntur."Cf. etiam, si placet n. 536, p. 272, ubi triplicem hanc distinc-

tionem ad episcopalem potestatem translatam videas.

In his omnibus (quae a recentiori quodam scriptore eoque laico desumpta

sunt) Auctor non obscure recedtt a communi usu atque auctoritate canonista-

rum et scholasticorum. Quaeres, praeter alia incommoda, non parum implicat

atque enervat demonstrationem catholicam de primatu jurisdictionisPetro

collate, ut videre est apud eumdem D. Smith, n 460, pag. 204 seq. Cf. Tar-

quini, Instit.i., 4, in nota.

Attamen haec eadem facile reduci possunt ad communem doctrinam, si

cautiorem loquendi modum adhibemus, qualem habet prae caeteris Valen-

tia, De Fide, disput. i., qu. i, punct. 7, 25, pag. 234 ibi : Emmet, et

Ecclesiae ordo maxime in differentia atque varietate vitae,statuum et officio-

rum seu administrationum quae in ilia continentur," . . . Eoque refert Va-

lentia Dionysium Areopagitum, qui actus hierarchiae tripartite dividit in

lib. de Ecclesiastica Hierarchia, c. 5 et 6. Docet namque ad Ecclesiasticum

Ministerium tria pertinere, nempe purgare, illuminare zlperficere. Et quae se-

quuntur plane opportunissima. Cf. eod. loc. 30, ubi idem Valentia prima-

tum Petri probat ex Jo. xxi.*

II. (N. 202, pag. 89.)"

Ecclesia infligere potest saltern leves corporales

punitiones, ut reclusio in monasterium, incarceratio et similes, non tamen poe-

nam mortis."

Quod ultlmutn asserendum non esset, sine limitatione aut declaratione de

qua Tarquini, i.,n. 47, p. 48, i) ad 7

am.f

III. (N. 455, pag. 199.)"

In re mere temporal et civili dubitari nequit quin

ab ecclesiastico tribunali ad civile licite appelletur" (sic).

Assertio redditur valde difficilis, nisi forte addatur hypothesis, quam sub-

oscure innuit Phillips in loco heic citato ab Auctore : nempe quod judex

ecclesiasticus ex quadam constitutione locali habeat etiam tribunal quoddam

mere civile.:]:

IV. (N. 483, p. 229.)" Meminisse debemus depositiones principum fuisse

quidem artus Pontificis, non vero infallibiles definitiones, quas Catholicus tan-

quam definitiones de fide accsptare debet,"

Quasi vero ab auctoritate Pontificis nonnisi definitiones fidei, Catholicus

tcceptare teneatur.

V. Quod vero ibidem additur"

mundum, Catholicum quin etiam christia-

num esse desiisse," explicari debet ex iis quae Auctor praemiserat (in

* See corrections under n. 189, 191, 196. t See corrections under n. 203, 204.,

$ See correction under n. 455. See correction under n. 483.



Consultors Report. xxv

7>aeced. n. 482, p 227). quae tamen licet a quibusdam rrcentioribus fidentius

praedicuntur, minus vera sunt/ Nam etsi mundus non sit amplius catholicus

et christianus, secundum regimen sociale laicum, attamen formaliter catholicus

et christianus est secundum regimen sociale ecclesiasticum, nihilque prohibet

quominus Papa, ut antea, benedicere possit, nedum singulis fidelibus distri

butive, sed etiam Urbi et Orbi collective. Ceterum ilia assertio eo vel mngis

miranda est in homine qui nostris hisce temporibus tam serio recolit exclusi-

vam principum in Conclavi (n. 337, p. 141).*

VI (N. 32, pag.22

)

"

Sententia tenensquasdam leges

Pontificias ad disci-

plinam spectantes, de facto non obligare antequam acceptentur, (sic) modo hoc

tribuatur liberae voluntati Pomificis, licita est, et sustinetur a multis doctori-

bus Catholicis."

Propositio desumpta est ex Bouix, de Principiis, P. ii.,sect. 2, cap. 5, I,

p. 219. Sed revera auctores qui pro ea allegantur, vel ad rem non faciunt,

vel etiam affumant contrarium, ut egregie ostendit P. Sanguineti. Et certe

jautius et concinnius loquendum esset, cujus rei specimen proferri potest

ex Zallin. tit. de Constit., 170. Dico igitur potest, si lex pontificia

generalis Romae promulgata in provinciis non proinulgelur, subditus abejus-dem observatione regulariter excusari, ex praesumpta voluntate Summi Ponti-

ficis non urgentis observaiionem in provinciis. Haec praesumptio fundatur in

jure ( 125), et quia episcopi non pro meris executoribus pontificiarum legum,

sed pro veris pastoribus, debita potestate praeditis habendi sunt, a qu bus

Deus de commissis a Se ovibus rationem exiget. Et 124:"

Si istiusmodi leges

(quae ad disciplinam spectant) in diocesi non promulgentur, praesumi potesi

Fontificem nolle obligare diocesanos, vel ipsum potius Ordinanum de dilficultate

leges hoc loco promulgandae aut observandae cum Secle Apostolica egisse

aut agere, ut propterea ejus obligatio interea suspensa maneat."

Et juxta ejusmodi observationem corrigenda t . :ent turn ea quae idem Dr.

Smith subjicit in cit. n. 32 et seq., turn ea quae praemiserat n. 26 (pag. 19) ma-

gis universaliter quam Bouix.f

VII. (N. 4, p. 10.) Jus canonicum publicum describitur quod sit :

"

Legum

systema quibus Ecclesiae Constitutio definitur."

Observo Emum Tarquini a quo desumpta est haec definitio (cit. Instil. \.,

n. 3) non dividere jus canonicum in publicum et privatum, sed jus ecclesiasti-

<um in publicum (ut supra) et privatum seu canonicum proprie dictum (Tar

quini, n. 4, p. 3)4

II.

EMINENZA RMA.

Ho esaminato secondo li venerati ordini di Vostra Eminenza il capo de ju-ribus et

officio parochown degli Element di Dritto Ecclesiastico del Rudo Dr.

Smith, opera publicata in Nuova York coll approvazione del Vescovo diNewark, a cui soggetto 1 Autore, e del Card, Arcivescovo di Nuova York

;ed.

*

See corrections under n. 482, 483, and 337. f See corrections under n. 27-28.

t See correction under n. 4.



X X \ 1 Consultors Report.

ho esaminato secondo 1 istesso incarico avuto la crltica che di que . capo estata fatta in sei ietiere publicate in un giornale, alcune colla firma del RndoDr Ouiglev, altre coile iniziale T. M. Ed avvegnache siano da rilevare parec-chie inesattezze c purqualche erronea sentenza (e certo non facile, scrivendolibri di tal genere, schivar sempre ogni errore) debbo pur dichiarare secondo il

mio debole parere che quest opera del Rndo Dr Smith e di gran merito escritta con ispirito eccellente e veramcnie romano. Per il che merital Autoreogni encomio, senHo egli certo uno de primi che io mi sappia che abbia congran lena e diligcnza intrapreso a scrivere un opera di dritto canonico nelle

parti dell America del Nord, essendo assai difficile di applicare. csiendere u

restringere i principi general per quei luoghi, come per tuttei altre Missionche sono ancor fuori per molt

capidel dritto comune. Se ho

qualche dispia-cere di quest opera, si e che sia scritta ri lingua inglese, e che un opera deltutto ecclesiastica e massimainente indirizzata agli ecclesiastic , non siascritta piu tosto nella lingua della chiesa. Or v<-ngo senza piu a discutere il

merito della critica e censura fatta al libro dell autore. Or questa censura ecritica e intera a dimostrare chel Auiore perduecapi troppoo mancoattribuis-ce all autorita de Parrochi in America. Si not che la Parrochi propnam- ntenon sono, ma Rettoii di chiese e di Mission . L Autore li chiama Pastor, attenendosi all uso di molii, ma un tal nome sendo comune a protestanti e comu-nemente attribuito a loro pseudo ministii del culto, non dovrebbe certo averluogo nel linguaggio preciso d un canonista cattolica. Ma la e questa ques-tione di nomi

;venamio alle cose.

La prima critica che si fa all A. (Lette-a prima firmata T. M.) si e chegli ntenga non esser confermati dalla S. Sede gli atti del secondo Concilio plenano di Baltimora. Tutto cio mi pare che abbia tutte le ragioni1 Autore, e nessun fondamento la critica. Imperoche Vostra Eminenzasa bemssimo che la S. Sede non e solita generalmente confermare verunconcilio nazionale n provinciale, ma sohanto riconoscere gli atti, e pre-scnvere, se e d uopo, certe correzioni. Nondimeno in quei iuoghi o nellemissioiii, che come ho detto, son fuori del dritto comune, sendovi bisogno d undritto qualunque, 1 a la S. Sede confermati parecchie volti, e cosi confennoi quattro provincial d Inghilterra, il primo plenario d Irlanda, e il primo plenano di Baltimora. Ma il secondo plenario di Baltimoia, come gia il secondo panmente plenario d Irlanda non

venne confermato dalla S Sede malatte le opportune correzioni da questa S. Congregazione, fu semplicementenconosciuto e ordinato che si publicasse Pertanto si ha il decreto, alloraemanate da questa S. Congregazione di Propaganda, e sottoscritto da VostraEminenza Rma, allora Segretario ;

D^retum dico, recognitions, m n gia app o-

batioms, ect. II cntico igno.a questa distinzione, o confonde insieme duecosi attato distinte, che sono la ricognizione e I approvazione

T T\SeC

|

OI?da censura che si fa al libro dell Autore (Lettera scconda firmata

1. M.) colpisce una sua dottrina o sentenza cosi formulata : La euirisdizionelegata puo nvocarsi senxauna causa. Ma i Pas-ori son delegati e nonver.-

mente Fanochi;e dunque ponno rivocarsi senza una causa. Ouesta conclu-

sione non ammette il censore, e la reputa uffensiva a dritti di quali 1 airochi

oRettondelle chiese. Ma anche qui il critico o censore confonde una cosa

A 1 ,

veramente ignora una distinzione ch e necessario fare. L Autorepar a di validita d una tal rivoca, ed ha ragione. Imperocche se i quasi Par-

VPron n S

T parrochi Propriamente, e. dunque son sempre amoVibili dalcovo, anche senza una gius;a ragione. In tal caso agira il Vescovo in-

justamente,ma non sara senza effetto il suo atto di revoca. E che il nostroA ruenga certo illecito una tal revoca, abbenche non invalida, si par chiaro

-oH, rua r repaff I79)11

^

decreto Monetnus del secondo ConcilioBaltimora, ove viene anche ordinato che i quasi parrochi si dcb-

ô- vocareprevioprocesso. e che il rivocato abbiafacolta di ricorrere alo U peri ore

La lerza critica

(Letteratorz2

firmata Rndo Dr. Quigley) ai contrario dellaprccedentc va a fcri.e il nost.o Autore pcrmanco anribuire all autor.ta dtf



Consultors* Report. xxvii

Vescovi sulla stessa questione della revoca de quasi Parrochi. L Autore a pag.

381 propone la questione, Come ponno esser rimossi i Pastori ratione criminis?

E risponde che non ponno esser rimossi senza un giudizio regulare del Ves-

covo e di due preti assunti a questo officio. In conlerma di tale risoluzione

cita il Decreto 77 del secondo Concilio plenario di Baltiuvora. II critico rileva

contra il nostro A. ch ei deroghi all autorita del Vescovo, supponendo che

non possa parimente il Vescovo sospendere il parroco ex informata conscientia.

Ma questa deduzione e affatto insussistente. Si legga a mo d esempio il

citato Decreto N. 77 del Concilio di Baltimora, e si ve chiaro che qui nonsi parla affatto di tale sospensione ex infonnata conscientia. Potrebbe perciodedurr e il nostro critico che la si excluda

parimentein

questoDecreto ? Che

il detto Concilio abbia tigettato una regola di disciplina cosi rilevante, san-

cita dal sacro Concilio di Trento? Non gia. La regola dunque sara ancor

questa che in caso di sospensione ex informata conscientia, se il sospeso si

grava, possa ricorrere alia S. Sede, ma non appellare.

La quarta critica dell istesso e a cio che deduce 1 Autore a pag. no e nr.

domanda se colla sola autorita del Vescovo le parrocchie di cui sono i pastori

amovibili ad nutum ponno convertirsi in parrocchie di cui non sono amovibili

i titolari, e vice versa. Risponde che de jure communi cio si puo far solo

coll autorita della S. Sede richiamandosi al decreto del Concilio di Balti

mora. Qui si noti che 1 Autore non esclude che il Vescovo possa formare nuova

parrochia, anzi a pag. 109 lo ammette espressamente. II critico confonde

una cosa coll altra.

La quinta critica dell istesso risguarda il valore de decreti dell" Indice,

che 1 Autore discute se valga in quelle parti ;in cio la critica e fondata e 1 A.

si scosta alquanto dall insegnamento romano.

Dapo aver scritto le premesse osservazioni, rilevo da una rivista di America, che gia s a fatta, e s a ricevuta con gran plauso una nuova edizione di

quest opera. Si potrebbe dunque suggerire che per un altra edizione che

forse non si fara aspettar molto, si corregga 1 insegnamento dell A. rispetto

n decreti dell Indice.*

Ma vi e un errore ancor piu notabile da corregere. E dichiara p. 391, che

il Decreto Tametsi del Concilio di Trento sull impedimento di Clandestinita,

nonobliga

i

protestanti,ne la

parteCattolica che contrae con un

protestante.Questo e errore certamente notabile e da emendare in una nuova edizione.f

TRANSLATION OF THE CONSULTOR S REPORT WRITTEN IN

ITALIAN.

MOST REV. EMINENCE : In accordance with the venerated commands of

Your Eminence, I have examined the chapter de juribus et officio parochorum

of the" Elements of Ecclesiastical Law," by the Rev. Dr. Smith, a work pub

lished in New York, with the approbation of the Bishop of Newark, to whom

the author is subject, and of the Cardinal-Archbishop of New York. In accordance with the same commands I have, moreover, examined the criticism

which haa been made on this chapter in six letters or communications pub

lished in a certain newspaper, some under the signature of the Rev. Dr.

Quigley, others under the initials T. M. Though the book may contain some

inaccuracies and even erroneous opinions (and certainly it is not an easy mat

ter, in writing books of this kind, to entirely avoid errors), yet I must declare

that, in my humble opinion, the work of the Rev. Dr. Smith is possessed oj greai

merit, and -written in an excellent and truly Roman spirit.\ Hence the author il

* See correction under n. 503 sq. t See correction under n. 391 and on page 433.* The italics are ours.



xxviii Consultors Report.

worthy of all praise, being certainly, as far as I know, one of the first who has,

with no ordinary labor and assiduity, undertaken to write a work on CanonLaw for the United States, as it is a very difficult matter to apply, extend, andrestrict the general principles of ecclesiastical law as well in those parts [theUnited States] as in all missionary countries, which in many respects are not

under the general law of the Church. If I have any fault to find with this

work, it is that it is written in English, and that a work altogether ecclesias

tical in character, and intended chiefly lor ecclesiastics, should not be written

rather in the language of the Church.

I nowproceed without delay to discuss the merits of the criticism or cen-

.sure made upon the author s book. This criticism or censure is wholly di

rected to showing that the author, in two ways, attributes either too much or

too little to the authority of parish priests in America. Observe that in the

United States there are no parish priests proper, but only rectors of churchesand of missions. The author, in accordance with the usage of many, calls

them pastors. But this name, being common among Protestants, and generally applied to their pseudo-ministers of worship, should certainly not find a

place in the concise language of a Catholic canonist. However, this is a question of names

;let us come to

things.The first criticism which is made against the author (first letter, signedT. M.) is that he holds that the acts of the Second Plenary Council of Balti

more are not confirmed by the Holy See. Now, it seems to me that in this

question the author is perfectly correct, and that the criticism has no foundation whatever. For Your Eminence is fully aware that the Holy See is notaccustomed as a rule to confirm any council, national or provincial, but thatit simply revises or recognizes the acts, and prescribes, if need be, certain corrections. Nevertheless in those countries or in missions where, as I havesaid, the common law of the Church does not obtain, there

beingneed of

somelaw, the Holy See has sometimes confirmed those councils. Thus it confirmed the four Provincial Councils of England, the First Plenary Council ofIreland [Synod of

Thurles], and the First Plenary Council of Baltimore Butthe Second Plenary Council of Baltimore, as also the Second Plenary Coun-:il of Ireland [Synod of Maynooth], was not confirmed by the Holy See, butsimply rev.sed or recognized, and ordered to be published after the opportunejrrections had been made by this Sacred Congregation. Hence also the de

cree that was issued at the time by this Sacred Congregation of the Propaganda and signed by Your Most Rev. Eminence, then secretary, was a decretum

recognitions, not approbations, etc. The critic is ignorant of this distinction,and confounds two things altogether distinct namely, revision (or recognition) and approbation.

The second criticism made upon the author s book (second letter, signedT. A. .) is against a doctrine or opinion of his thus formulated : Delegated juris-

can be revoked without a cause. Now, pastors [in the United States]are delegates and not parish priests in the proper sense. Hence they can berecalled without cause. The critic does not admit this conclusion, and consi-

t injurious to the rights of the parish priests or rectors of churches in



Consultors1

Report. xxix

those parts.* But herein also the critic or censor confounds one thin?? wi h

another, or rather is ignorant of a distinction which it is necessary to make.

The author speaks of the validity of such a removal, and he is right. For ii

those parish piiests are not parish priests proper they can always be removed

by the bishop, even without a just cause. In such a case the bishop would

act unjustly, but his action in removing the pastor would not be without effect.

That our author holds that such a removal would certainly be illicit, though not

invalid, is clearfrom what is said in the decree Alonctnus [No. 125] of the Second

Plenary Council of Baltimore, as cited by the author (p. 179). which council

[as quoted by the author], moreover, ordains that the quasi-parish-priests [of

the United States] should not be removed, save upon previous trial, and that

the person removed has the right to have recourse to the superior.

The third criticism (third letter, signed Rev. Dr. Ouigley), contrary to the

preceding one, is made against our author for attributing too little to the au

thority of bishops on the same question of the removal of quasi-parish-priests.

The author, on page 381, proposes the question : How can pastors be removed

ratione aimini? He answers that they cannot be removed without a regular

trial by the bishop and two priests appointed to that effect. In proof of this an

swer he quotes the Decree 77 of the Second Plenary Council of Baltimore.

Here the critic objects against our author that he derogates from the authority

of tê bishop, as ii would follow from his teaching that in like manner the

bishop cannot even suspend parish priests ex injormata conscientia.

But this inference [of the critic] is destitute of any foundation whatever.

Let any one read, for example, the Decree 77 above cited of the Second Plenary

Council of Baltimore, and he will clearly perceive that it makes no mention

whatever of suspensions ex informata conscientia. Could our critic, on that

account, infer that this decree likewise repudiates such suspensions? that

the above council has rejected so important a disciplinary measure, sanctioned

by the Council of Trent? By no means. The rule, therefore, is, that in case

of suspension ex informata conscientia, where the person suspended feels him

self aggrieved, he can have recourse to the Holy See, but not appeal.

The fourth criticism from the same source is against the teaching of the

author on pages no and in. There the latter asks whether, by the sole au

thority of the bishop, parishes whose pastors are removable ad nutum can be

changed into parishes whose titulars are not removable, and vice versa. He

answers that, dejure communi, this can be done only by authority of the Holy

See, and, in proof of this, points to the Second Plenary Council of Baltimore.

Observe that the author does not deny that the bishop can form new parishes ;

on the contrary, on page 109 he expressly admits this. The critic confounds

one thing with another.

* That the Consultor s exposition of our doctrine is correct will be clearly seen from our

"

Elements," No. 419, etc. When, therefore, the critic attacked our views on the removal of our

rectors, by placing upon the word"

invalid"

a construction which, as we show in our*

Counter-

Points,"was never dreamt of by us, he evidently gave the Consultor just cause for attributing

to him the above views. If the critic s position was perhaps somewhat misunderstood by the Con-

suitor, he has nobody to blame but himself.



xxx Consultors* Report.

The fi th criticism of thesame critic has reference to the force of the de

crees of the Index, whose binding force in the United States is questioned bythe author. On this head the criticism has a foundation, and the author de-

viaies somewhat from the Roman teaching.

After having written the foregoing observations I learn from an Americanreview that anew edition of this work has already been published and re

ceived with great favor. It might, therefore, be suggested that in a future edi

tion, which perhaps will soon appear, the teaching of the author concerningthe decrees of the Index be corrected.

But there is another and more serious errorwhich should be conected.Ho [the author] teaches on page 391 that the decree Tametsi of the Council of

Trent, on the impediment of clandestinity, does not bind Protestants, nor a

Catholic contracting with a Protestant.* This is certainly a notable error,and should be corrected in a new edition.

* We meant that this was the case where the Declaration of Benedict XIV. obtained. But weevidently did not express this clearly, and thus gave the Consultor just caus for attributing to usthe above erroneous opinion.



BOOK I.

ON ECCLESIASTICAL PERSONS.

PARTI.

ON THE PRINCIPLES OF CANON LAW.

CHAPTER I.

ON THE NAME, DEFINITION, AND DIVISION OF CANON LAW.

ARTICLE I.

Various Meanings of the term, Jus.

1. The word Jus in general signifies : I, that which is just

and equitable or in harmony with the natural, divine, and

human law; 2, the right of doing or omitting something, as

also of obliging another person to give, perform, or omit some

thing;2

3, the science of law, or jurisprudence ; 4, finally, it

means the laws themselves, or the body of laws;thus we say,

"

Corpus3

juris canonici" i.e., the body of ecclesiastical laws ;*

Corpus juris civilis i.e., the body of the civil or Romanlaw. In this. latter sense chiefly we shall use the word Jus

in this book.

ART. II.

Division of Law (Juris in varias suas species, distributio).

2. Law (jus) is divided, i, into natural (jus naturale) and

positive. The jus naturale, according to Bouix,* constat iis

1

Bouix, De Princip. Jur. Can., p. 5. Paris, editio secunda.

*Craisson, Man., n. 2. Pictavii. 1872. Bouix, 1. c.

4

Cf. Salzano, Lezioni di Diritto Canonico, vol. i., p. 10. Napoli, 1850.1 De Princip., p. 6.



On the Name, Definitionând

egibus seu obligationibus quae ita necessario fluunt ex

Dei et creaturarum natura ut. rion possint non existere.

Positive law (jus fositivuni) is made up6

of laws enacted by

the free will either of God or of men.

3 2. Positive law is subdivided into divine and human,

according as laws are made by the free will of God or

of men.

4. 3.Human law is of three kinds : ecclesiastical 01

canon law, civil law, and the law of nations. First, the law

of nations (jus gentium) is that which obtains among all, or

nearly all, nations.8

It is twofold : primary and secondary.

The law of3

nations, in the proper sense of the term (jus

gentium secundarium), is that code of public instruction

which defines therights

andprescribes

the duties of nations

in their intercourse with each other.1 &

In this sense, the

law of nations bears upon the rights of commerce, of am

bassadors, etc,"

and is now called international law.

Secondly, civil law (jus civile),in the strict sense of the

term, consists of positive laws, enacted by the civil authori

ties forI2the temporal welfare of the citizens of a common

wealth. In the United States,laws are enacted:

I, bya

Congress,13

consisting of a Senate and House of Represen

tatives the powers of Congress extend generally to all

subjects of a national nature; 2, by the legislatures

Mof the

various States; 3, by the city councils. Other laws in force

with us pertain to the common law, some to the statute

law, andlf>

others, finally, to the Roman or civil law.

Thirdly, ecclesiastical law (jus canonicum) is the third

kind of human law;of this law we shall now treat.

De Princip., p. 6. Bouix, loc. c., p. 7.*

Bouix, p. 7.

"Cfr. Reiff., Jus Can., Prooem., n. 31. Paris, 1864.

10 Kent s Comm., part i.,lect. i., p. i, vol. i. New York, 1832. Cfr Rei

\. c., n. 32."

Kent, 1. c., p. 1-191.12

Bouix, 1 c., p. 7.

1S

Kent, 1. c., vol. i., part ii., lect. xi., p. 236.

"

Kenrick, Mor. tract. 6, n. 4.15Konings, Mor., n. 177.



Division of Canon Law. g

ART. III.

What is Canon Law ?

5. Canon law (jus canonicum,16

jus ecclesiasticum, jus sa

crum, jus divinum, jus pontificium) is so named because it is

made up of rules or canons, which the Church proposes and

establishes in order to direct the faithful to eternal happiness." Canon law, in the strict sense of the term, comprises

those laws only which emanate from an ecclesiastical au

thority having supreme and universal jurisdiction,19

and in

this sense it is denned : Complexio legum auctoritate Papae

firmatarum, quibus fideles ad finem Ecclesiae proprium diri-

guntur.19 We say, auctoritate Papae firmatarum, but not

constitutaruin or approbatarum ; because in canon law there

are many laws which pertain to the jus divinum, both natu

ral20

and positive; these laws were neither enacted nor,

properly speaking, approved of by the Supreme Pontiff, but

merely promulgated by him in a special manner.21

Canon

law, taken in a broad sense of the term, includes not only

laws made by the Supreme Pontiff, but also laws enacted by

legates, councils, whether national or provincial, etc. Hencecanon law, in a wide sense, is denned : Complexio legum a

quocunque potestatem legislativam possidente in bonum fide-

lium firmatarum.22

Canon law, as a science, is termed "

ec

clesiasticaljurisprudence," which, in a strict sense, is de

nned : The science of ecclesiastical laws, as made by the au

thority of the Pope. Ecclesiastical jurisprudence, in a wide

sense, means the science not only of the Papal ecclesiastical

laws,23

but of all ecclesiastical laws.

How ecclesiastical jurisprudence differs from theology

and civil jurisprudence we have elsewhere demonstrated.14

18

Phillips, Lehrb., | 3, p. 3. Regensburg, 1871.

"

Bouix, De Princip., p. 54.&

Ib., p. 62.wCrarsson, Man., n. 5.

Bouix, 1. c . p. 61.21

Ib..l.c. M Ib., p. 64, 65. "Ib.,p. 65.

*4 Notes on the Second PI. C. Bait., n. 3.



io Name, Definition, etc., of Canon Law.

ART. IV.

Division of Canon Law.

6. Canon law is divided :

1. By reason of its author, into divine, or that which is

constituted

byGod, and into human, or that which is

enacted by man."

2. By reason of the manner in which it is promulgated,

into written and unwritten."8

3. By reason of those whom it binds, into common (jus

commune), that, namely, which is per se obligatory on all

the faithful; and into particular or special (jus particulare),

that, namely,which is

bindingon some of them"

7

only.4. Into public and private. Craisson

28thus defines both:

" Publicum exhibet constitutionem societatis ecclesiasticae

ipsius regimen, ordinem personarum ad invicem in Eccle-

sia, jura et officia earum,- etc.& 9

Privatum versatur circa

obligationes singulorum, prout distinguuntur a gubernatiohe

ecclesiastica v.g. ,circa sacramenta recipienda.

"

5. Into the jus antiqiuun, novum et novissimum."

According to some canonists, the old law (jus antiquum)

is that which was enacted or existed prior to the Council of

Trent;

"

the new (jus novum) is that which was made by

that Council; finally,

the modern, or jus novissimum, is that

which was published since the Council of Trent." Others

employ these terms somewhat differently.

For fuller explanations of the above divisions, we refer to

our Notes on the Second Plenary Council of Baltimore."

*Tarquini, Jus Eccl. Publ. Instil., p. 131.

"

Ib.rBouix, 1. c, p, 65.

SB N. 9 .

Îb.

*Cfr. Notes on the Second PI. C. of Bait, n. S, p. io

MSchmalzgrueber, Jus Eccl., torn,

i., a. 249, 250.

* Bouix. De Princip., p. 66."

Craisson, 1. c.. n. io.M

J.



CHAPTER II.

ON THE SOURCES OF CANON LAW DE FONTIBUS JURISCANONICI.

ART. I.

7. A source or fountain is that from which something

takes its origin. By sources of canon law we mean, there

fore, the legislative authority of the Church;ecclesiastical

lawsa

are said to spring from their proper source when they

are enacted or promulgated by those who are vested with

the law-making power in the Church.3

In a broad sense,

however, canonists designate as sources of ecclesiastical

jurisprudenceall instruments that contain the law itself.

4

8. There are eight sources of canon law, in the strict

sense of the term that is, as forming the common and riot

the particular law of the Church. These sources are: I,

S. Scripture ; 2, divine tradition; 3, laws made by the

Apostles; 4, teachings of the Fathers; 5, decrees of sove

reign Pontiffs; 6, CEcumenical councils

; 7, Roman Congre

gations of cardinals;

and 8, custom.

5

9. To these, some add "

civil laws," which, however,

derive all their force, so far as they are applicable to eccle

siastical matters, soiely from the authority of the Church.

In fact, in her judicature, the Church disdains not to

1 Notes on the Sec. PI. C. Bait., n. 14. Cfr. Soglia, vol. i., p. 71.

Craisson, Man., n. n. *

Tarqu., 1. c., lib. 2, n. 23, p. 130.

4

Soglia, Inst. Jur. Publ., 14, p. 22, ap. Notes, p. 14.

*Craisson, 1. c., n. 16.

*

Kenrick, Mor. Tract, iv., app., to. I.



1 2 On the Sources of Canon Law.

adopt, at times, the mode of proceedings which is peculiarto civil courts.

7

10. All these sources may ultimately be reduced to one

the authority of the sovereign Pontiff. For S. Scriptureand divine tradition are not, properly speaking, sources of

canon law, save when their prescriptions are promulgated

by the Holy See. Again, the laws established by the Apostles and the teachings of the Fathers could not become

binding on all the faithful or be accounted as common laws

of the Church, except by the consent andauthority of Peter

and his successors. In like manner, councils are not oecu

menical unless confirmed by the Pope. The Roman Con

gregations but exercise powers conferred upon them by. the

Pope. Neither can custom obtain the force of universal

law save by at least the tacit sanction of the Apostolic See."

Hence, all the above sources may appropriately be resolved

into one, namely, the authority of the Popes.

ir. Reiffenstuel,9

however, aptly observes that God is

the primary or chief, though remote and mediate, source

of canon law, publishing laws through the Roman Pontiffs.

The proximate and immediate source of ecclesiastical law

are the Apostles, the Sovereign Pontiffs, and Councils.10

12. God himself, therefore, is the primary source of

ecclesiastical law, though He is so but mediately, exercisingthis authority through the Popes, who are the proximateand immediate source of canon law.

Wepass

on to the several sources.

Soglia, Inst. Jur. Publ., 43, p. 82.*

Craisson, 1. c., n. 19.*

Jus Can., Prooem ,n. 52, torn, i., edit. Paris, 1864.

"

Ib., n. 53.



On the Sources oj Canon Law. 13

ART. II.

[. Of Sacred Scripture as a source of Canon Law.

13. The S. Scriptures are divided into those of the

Old and those of the New Testament. The Old Testament

contains three sorts of precepts: moral, ceremonial, and

judicial. The moral code of the Old Testament remains in

full force in the New Dispensation ;the ceremonial and

judicial laws have lapsed, and become null and void."

Yet arguments based upon the ceremonial and judicial

injunctions of the Old Testament are of no little weight in

canon law. Thus, St. Leo the Great ia

points to the dignity

of the priesthood of the old law in order to show the excel

lence of the priesthood of the new. The same is done by

St. Jerome13

in regard to the celibacy of the clergy. The

influence and bearing of the Old Testament upon questions

of ecclesiastical jurisprudence are thus stated by Zallwein :

Si quae sunt quaestiones controversae . . . haud in-

epte, licet non convincenter, ex Antiquo ad Novum argu-

mentaberis Testamentum."

14. The New Testament is the first and chief source of

ecclesiastical law, both public and private. In fact, ques

tions pertaining to the public law of the Church those, for

instance, which refer to the foundation of the Church are

all

clearly

demonstrated from the New Testament; and, as

to questions relating to the private law of the Church, there

is scarcely one that cannot be confirmed by the Scriptures

of the New Testament."

11

Soglia, Inst. Jur. Publ., 16."

Serm., 8 Pass., Dom, cap. viii.

"

Contr. Jovin., lib. i., n. 34."

Ap. Soglia, 1. c., 16, p. 25. Ib., I?.



14 On the Sources of Canon Law.

ART. III.

II. Of Divine Tradition as a Source of Canon Law (De Diiina

Traditions).

15. By tradition is meant a doctrma non scripta, sed ver-

bis tradita. It is named doctrina non scripta, not because it

is nowhere found in writing, but because it was not consigned

to writing1

by its first author. Traditions are divine and

human. The former are those which have God for their au

thor, and which the Apostles received either directly from

the mouth of Christ or by suggestion of the Holy Ghost.IT

Human traditions are those which emanated from the Apostles or their successors.

18 Human traditions are apostolic

when they originated with the Apostles; ecclesiastical; if

they come from the bishops.19

16. Divine traditions are binding on all the faithful, and

hence they constitute, though only in a broad sense, one of

the sources of canon law, in the strict sense of the term, or

as the common and universal law of the Church.80 Human

traditions, on the other hand, regard but the discipline of

the Church, and are, as a

generalrule,

applicableto

particular localities or countries only.

21

ART. IV.

(It. The Law enacted by tJie Apostles as a Source of Canon Law

(de Jure ab Apostolis sandto).

17. The following enactments are attributed to the Apostles :

i. The Apostolic Creed Symbolum apostolorum.22

2.

Abstinence from things sacrificed to idols, and from blood,

*nd from things strangled." 3. The substituting of Sun-

1

Ap. Soglia, p. 30, 31."

Cone. Trid., Sess. iv., Decret de S. Script.

18

Soglia, 1. c.19

Devoti. Inst. Can., Prolog ., cap. iv., 48*

Ib., 49,

*J Ib. OT Bouix, De Princip., p. 108."

Acts. xv. 29.



On the Sources of Canon Law. 15

day for the Sabbath of the Jews, and the hearing of Mass

every Sunday.24

4. The institution of the principal feasts

namely, Easter, Pentecost, and very probably also Christ

mas.1"

5. The fast of Lent, and, according to some, the

establishment of the chair of St. Peter at Rome.28

1 8. To the Apostles some writers moreover ascribe

certain canons which St. Clement, the disciple and suc

cessor of St. Peter, is said to have collected and grouped

together in two works;one consisting of but one volume,

and entitled Canones Apostolorum ;the other being made

up of eight books, and named Constitutiones Apostolicae."

Writers greatly differ as to the authenticity or genuine

ness of the"

Constitutiones Apostolicae."

Biner&

8 thus concludes his remarks on the subject :

a. The eight books of Apostolical constitutions are not

handed down from the Apostles.

b. These constitutions, nevertheless, are very ancient

and contain many salutary things.

c. Though originally free from error, they were subse

quently, in some parts, corrupted and interpolated by here

tics.

The same holds good of the Canones Apostolorum,4

at least this seems to be the more probable opinion."

19. What is the significance and weight of the jus ab

apostolis sancitum, as a source of canon law ?

Cardinal Soglia thus answers: The precepts or laws

promulgatedby the Apostles as

divinelyinspired should

always remain in force. But the precepts or laws made by

them as rectors of churches can be changed by the Sove^

reign Pontiff.31

MCraisson Man., n. 22.

"

Craisson, 1. c., n. 22.

MBouix, De Princip., p. 109.

"

Craisson, 1. c., n. 23 (2).

MApp. Jur. Can., p. 2, c. 4, ap. Craiss. 1. c.

"

Bouix, De Princip., p. 120

30

Ib.

"

Inst. Jur. Publ. p. 29, *8



i6 On the Sources of Canon Law.

But how are we to know the difference between these

two characteristics of the Apostles,or between the divine

and the Apostolic prescriptions?

This difference is conveyed at times in the express words

of the sacred writers/3

Thus, St. Paul says on the one

hand: Not I, but the Lord commandeth ;"on the other:

I speak, not the Lord.

34

The context and subject-matter may also indicate the

distinction.36

ART. V.

IV. Teaching of the Fathers as a source of Canon Law (pi

Senlentiis Patrum).

20. On this head we quote the words of Reiffenstuel:

"Dicta sanctorum Fatrum sunt doctfinalia, sive magis-

terialia ;non vero undequaque authentica seu vim legis ha-

bentia.30 "

3Soglia, 1. c., p. 29, 18.

3Si Cor. vii. 10.

*i Cor. vii. 12.

*5

Soglia, 1. c.*

Jus Can., Prooera., n. 77, torn. I



CHAPTER III.

V. DECREES OF SOVEREIGN PONTIFFS (DECRETA SS. PON-

TIFICUM) AS A SOURCE OF CANON LAW.

ART. I.

Of the Nature of the Power of the Roman Pontiffs.

21. The decrees of the Roman Pontiffs constitute the

chief source of canon law; nay, more, the entire canon law,

in the strict sense of the term, is based upon their legisla

tive authority. Hence it is that heretics have ever sought

to destroy, or at least to weaken, this legislative power.

The following are the chief errors on this head :

22. i. Luther openly maintained that no legislative au

thority whatever was vested in the Pontiff.

2. Nicholas de Hontheim, suffragan of the Archbishop

of Treves, having in 1763 published a book under the as

sumed name of Feb ouius, conceded to the Pope but an

accidental power to enact or rather propose laws,1

namely,

when an oecumenical council could be convened only with

difficulty. Laws thus formed could bind only when ac

cepted by the consent of the entire Church.2

3. Manyinconsiderate and incautious defenders of Gal-

licanism hold that the laws of the Sovereign Pontiffs are not

binding on the faithful unless they are received or accepted

at least by the bishops.1

23. To proceed methodically, we shall show, I, that the

Roman Pontiff has legislative power over the entire Church ;

2, that the Pontifical laws bind both de jure and de facto,

Bouix, De Princip., p. Tf>7,edit. 2d.

*

Phillips. Jus Can., vol. iii., 136, p 369, edit. 1850.

Bouix, 1. c , p. 167 (3).



1 8 Decrees of Sovereign Pontiffs as a

independently of their acceptation by any one, even bish

ops ; 3, how Pontifical laws are to be promulgated; 4,

what are the various kinds and formalities of Papal laws.

Each of these questions will be separately treated in the

following articles.

ART. II.

The Sovereign Pontiff Itas received directly from our Lord him

self Legislative Power over tlie entire Church.

24. We premise: This proposition maintains, I, that

legislative power over the entire Church is vested in the

Roman Pontiff; this is de fide / 2, that the Pope has re

ceived this power immediately or directly from Christ him

self, which is, at present, also de fide? We now proceed to

prove our thesis As we shall see farther on (infra, n. 459-

462), the Roman Pontiffs have received directly from our

Lord the primacy not only of honor but also of jurisdiction

over the whole Church. But this primacy of jurisdiction

essentially and directly contains the full and supreme legis

lative authority over the entire Church." Therefore, etc.7

25. In proof or the major we shall, at present, con j

tent ourselves with giving the definition of the (Ecu

menical Council of the Vatican : (a)"

Si quis igitur

dixerit, beatum Petrum apostolum . . . honoris tan-

turn, non autem verae propriaeque jurisdictionis prim a-

turn ab eodem Domino Jesu Christo directe et immediate

accepisse ;anathema sit."

( )"

Si quis ergo dixerit . . .

Romanum Pontificem non esse beati Petri in eodem pri-

matu successorem;anath. sit."

1

(c) "Si quis ergo dixerit

Romanum Pontificem habere tantummodo officium inspec-

tionis, non autem plenam et supremam potestatem jurisdic

tionis in universam Ecclesiam . . . etiam in iis quae

4

Ap. Bouix, De Piincip., p. 168.

8Cone.

Vatican.,sess. iv.,

cap.i. Cf. Craiss., 28.

*Bouix, 1. c., p. 193. Ap. ib.., p. 185.

Tonr. Vatican., sess. iv., cap. i. "Ib-, cap. ji.



Source of Canon Law. 19

ad disciplinam et regimen Ecclesiae . . . pertinent;

. . . aut hanc ejus potestatem non esse ordinariam et

immediataiyj . . . anath. sit."

10

26. We now come to the minor: Is the legislativeO

power included in that of jurisdiction and inseparable from

it? Most certainly. For it is obvious that a person can

enact laws for those who are his subjects that is, those

over whom he possesses jurisdiction." Therefore the prim

acy of jurisdiction vested in the Sovereign Pontiff essenti

ally contains the power to make laws binding on the entire

Church."

ART. III.

Ofthe

Acceptance of PontificalLaws.

27. Are Pontifical laws obligatory on the faithful or the

Church, even when not accepted by any one? We reply

in the affirmative. The proof is : Papal laws are binding,

even without being accepted by any one, if Popes (a] have

tiie power to enact laws independently ot such acceptation ;

(i>) if, de facto, they wish their laws to be binding without

such acceptation. But this is the case; therefore, etc.13

28. I. The Sovereign Pontiff can, if lie chooses, enact laws

obligatory on tJie entire Church independently of any acceptation.

This is indubitable nay, according to Suarez, defide."

It

is proved from the preceding thesis. There it was shown

that the Roman Pontiff is invested with a legislative powerin the proper sense of the term. Now, if the

Popecould

bind those persons only who of their own free-will acceptedhis laws, he would

evidently be possessed of no power to

enact laws.15

In fact, the Pontiff, in such an hypothesis,would have no greater authority than any simple layman,or even woman, to whom anybody could be subject if he

so chose.18 He could, at most, propose laws, and would

10

Cone. Vatican., sess. iv."

Bouix, 1. c., p. 160. "Craiss., n. 29.13

Rciff, lib. i.,tit. ii., n. 136.MSuarez, De Legg., 1. iv., c. xvi., n. 2.

15

Bouix, De Priricip , p. T () I.JU

Craiss., 2q.



20 Decrees of Sovereign Pontiffs a:; a

therefore, in this respect, be placed on a level with the

President of the United States." The latter can propose

laws, as is plain from Art. II. Sec. 3 of the Constitution of

the United States, which says:" He

"

(the President)"

shall

from time to time give to the Congress information of the

state of the Union, and recommend to their consideration

such measures"

(laws) "as he shall judge necessary and

expedient." Yet he lias no legislative power whatever,

as is apparent from Art. I. Sec. i of the Constitution of

the United States, which reads :

"

All legislative powerherein granted shail be vested in a Congress of the United

States, which shall consist of a Senate and House of Repre

sentatives."

29. II. The Roman Pontiff de facto wishes that his -laws

should bind independently of their acceptation by any one. This

is evident from the fact that the wording of the Papal laws,

as of laws in general, is mandatory.2 &

Now, a command

given absolutely does not oblige merely on condition of its

being accepted, but unconditionally or absolutely ;

21

other

wise the supposed law or command would be no law at all,

but

merelya counsel.

22

30. Again. Pope Gregory IV. says:"

Praeceptis apos-

tolicis non dura superbia resistatur;sed per obedientiam,

quae a sancta Romana Ecclesia et Apostolica auctoritate

jussa sunt, salutifere impleantur. ... Si quis haec

Apostolicae Sedis praecepta non observaverit, percepti ho

noris esse hostis non dubitetur." This canon plainly

shows that Papal laws have penal sanctions attached, either

expressly or impliedly. Now, from this very fact it is

clear that Popes, bv their laws, have the will or intention

to bind the faithful absolutely, and not merely on condition

that the law be first accepted.24

This, in fact, seems no

17Cf. Soglia, vol. i.. p. 49. Neanoli, 1864.

18Cf. Kent s Comm., vol. i., p. aSS.

IUCf. iV, p. 222.

20 Reifr, l. c , n nS-i.u. "Ib. "Can. Quisquis 3, c. 14, q. I.

MOan. Praeceptis 2, dist. 12.

J4Reiff.,l. c.



Source of Lanjn Law. 21

no longer doubtful, in view of the condemnation by Pope

Alexander VII. of the following proposition :

"

Populus non

peccat, etiamsi absque ulla causa non recipiat leg-em a prin-

cipe"

(Papa)"

promulgatam."

"

For subjects would not sin

by refusing, even without just cause, to accept a Papal law, if

the latter, so far as its binding force is concerned, depended

on the acceptation of the people, or were enacted with the

implied condition that it be accepted by the faithful.**

31. From what has been said it follows that the Roman

Pontiffs have both the power and the will to make laws ob

ligatory on the entire Church independently of any accep

tation. Our thesis is therefore established, namely : Papal

laws bind before being accepted by any one.27 We there

fore reject the following opinion, advanced by Bouix 98

and Craisson,39and followed by us in the first and second

editions of this work (n. 22, 26, 32 ): The opinion of those

who hold that it is the will of the Roman Pontiffs that cer

tain Papal laws pertaining to discipline should not, de facto,

bind before being accepted, is lawful and sustained by manyCatholic doctors. In fact, the authors alleged by Bouix

and Craisson for this opinion either do not maintain it or

sustain the very opposite.

32. From what has been said it follows: i. Papal laws

are obligatory on all the faithful without the acceptation

of bishops.30

For if the force of the laws in question

depended on the acceptance of the bishops, it would

follow that the

SovereignPontiff could not

really make,but merely propose, laws.

31

Hence bishops cannot, as Fe-

bronius and certain Gallicans contend, refuse to accept or

promulgate Pontifical laws in their diocese, if they consider

them inopportune.33

All they can do is to communicate to

the Pope the adverse circumstances, and expose the reasons

why the law should not be enforced in their particular dio-

25

Ap. ib.56

Ib.

27S iprn. n. 27, seq.

** De Princ, p 219

*>

Man., n. 36.

80Traiss , n. 30.

31

Sog ia, vol. i, p. 49

3&

Ib.



22 Decrees of Sovereign Pontiffs as a

cases. If the Sovereign Pontiff should, nevertheless, insist

oh his law being- observed, he must be obeyed.33

33. If, therefore, a general law of the Roman Pontiff,

though promulgated in Rome, is not promulgated in some

particular province or diocese, the faithful of such place are,

as a rule, excused from its observance, not, indeed, on the

ground

that the

Popedoes not wish such law not to be

binding before being accepted, but on the presumption,founded in law, that he does not wish to urge its obser

vance, or rather because it can be presumed that the Ordi

nary has corresponded or is corresponding with the HolySee in regard to the difficulty ot promulgating or observ

ing the law, and that, consequently, the obligation of ob

serving it remains meanwhile suspended.

34

Observe, however, that this has reference to certain matters of discipline

only; for in questions pertaining to laith and morals the

judgment of the Pontiff is irreformable. We say certain

matters of discipline ;for in those matters of discipline which

relate to sacred rites, the sacraments, the life and conduct

of the clergy, Papal laws are not as a rule modified at the

suggestions of bishops.30

34. 2. A fortiori, Pontifical enactments, in order to be

binding, need not be accepted by the second order of the

clergy namely, the priests.36

Pontifical laws, moreover,

become obligatory without being accepted or confirmed bysecular rulers." The contrary opinion is thus condemned

by the Vatican Council :

"

Reprobamus illorum sentehtias,

\\\\ hanc Supremi Cnpitis cum Pastoribus et gregibus coth-

municationem licite impediri posse dicunt, aut eandefh

reddunt saeculari potestati obnoxiam; ita tit contendant,

quae ab Apostolica Sede vel ejus auctoritate, ad regimesEcclesiae constituuntur, vim . . . mm habere

33Bencd. XIV., De Syn. Diocc

, lib. ix., c. viii., n. 4. Prati, 1844.

^ReifiF., 1. c., n. 143, 144. "-"Bened. XIV., 1. c., n. 3.S6Craiss.. n.

32.37

Syllabus, prop. 28, 29, 44.




nisi potestatis saecularis placito confirmentur."38

The na

ture of the Placitum regium has been elsewhere explained

by us.39 The Government of the United States has never

claimed any power to review Pontifical documents or for-

bid their publication.

ART. IV.

Of the Requisite Promulgation of Pontifical Laws.

35. Definition. By the promulgation of a law is meant its

being made publicly known, by the lawgiver, to the com

munity in such a manner that it can come to the knowledgeof all concerned.

40 We say community. Herein promulgation is distinguished from the knowledge of the law which

may have been obtained by private individuals. The pro

mulgation is to be madepublicly, that is, to the whole

community, because a law binds not merely one or two

persons, but the whole community. Hence, until it has

been communicated to the community, it does not bind,even though some persons may have acquired a knowledgeof it. And once it has been promulgated to the communityit binds all, even though some persons do not know it/

1

From this it will be readily seen that it is not necessary, nay,it would be impossible, to make a separate promulgation to

each individual.

36. Q. Is the promulgation of a law absolutely neces

sary ?

A. Yes. No law whatever binds, save when it has been

sufficiently promulgated.42

This follows from the very

3S Cone. Vatican., sess. iv., cap. iii.

89 Our Notes, n. 32.

40Bouix, de

Princip.,

p. 236.41 De Angelis, 1.

i., t. 2, n. io.

43L. 9, C. de Leg. (i. 14).




nature of things. For it is plain that no community can be

bound to observe a law which has not been properly made

known to it." Consequently, Papal laws, in order to be

binding, must, like all other laws, be promulgated. The

same holds of the laws of the secular authorities. Black-

stone44

writes:" A resolution of the legislature is no law till

this resolutionbe notified."

37. Q. How should the promulgation of a law be made ?

A. A law may be promulgated in various ways. No

specialform or mode of promulgation is required. All that is

necessary is that the law be made publicly known in such a

manner that it can come to the knowledge of all con-

cerned.45

38. Q. What is the manner in which Papal laws, madefor the whole Church, are to be promulgated ?

A. i. Formerly there were writers, v.g. yNatalis Alex

ander, Tournely, Cabassutius, who affirmed that the laws in

question were not binding unless they had been formally

promulgated in every diocese and country of the world. In

other words, they held that no Papal law was obligatory in

a particular diocese or country unless it had been separately

promulgated in such diocese or country. Some writers went

even so far as to maintain that this mode of promulgation

was required by the law of nature. De Marca, Van Espen,

Zallwein, and others zealously advocated this form of pro

mulgation, because it favored the view that bishops had the

right not to accept, and not to promulgate, Pontifical laws.48

We say formerly ; for, at the present day, there is scarcely a

Catholic writer who holds that the promulgation in every

diocese or ecclesiastical province is necessary.

39. 2. At the present day, it is the general teaching of

43Schmalzg., 1. i., t. 2, n. 26.

44Com., Introd., sect, ii., p. 8.

45

Schulte,K. R., vol. i.,

p.

81sq.

46Bouix, 1. c., pp. 197, 23-2 sq.




canonists and theologians that the promulgation which takes

place in Rome is sufficient. Now the manner of promulga

tion of Papal laws at Rome, as practised for several hundred

years and as still in vogue, is to post them at the doors of St.

Peter s, of the Lateran basilica, of the Apostolic Chancery

offices, and in the public square called Flora.47 Nor can

be said that this mode of promulgation is insufficient. Fo:

that promulgation alone is requisite by which the knowledge

of the law will easily and conveniently reach the entire

Church. Now such is, especially at present, the promulga

tion made in Rome. For with our modern facilities of com

munication, with our cables and newspapers, a law which is

enacted and promulgated in Rome is made known all over

the world in a very short time. Hence a separate and for

mal promulgation in every diocese is superfluous.

It is therefore admitted by all at the present day; that

the promulgation of Pontifical laws enacted for the whole

Catholic world as made at Rome, in the manner stated, is

sufficient to bind all the Faithful. There is only one excep

tion to thisrule, namely,

where the Roman Pontiff or an

oecumenical council expressly prescribes or sanctions a dif

ferent or more local and particular form of promulgation.

An example of this exception to the rule is given by the

holy Council of Trent, sess. xxiv., cap. i.,de Ref. Matr. The

Council, in the place quoted, enjoins that marriages, on pain

of their invalidity, are to be celebrated"

in the presence of

the parish priest and two or three witnesses. But it also

decrees that this law shall be published in every parish church

of each diocese;and that it shall begin to be of force in each

parish at the expiration of thirty days, to be counted from the

day of its first publication made in saidparish." Here, then,

the binding force of the Tridentine decree in a particular

parish is made contingent upon its publication in such par-

41Santi, Prael. fur. Can. 1 i., t. 2, n. 23.



26 Decrees of Sovereign Pontiffsas a

ish. Hence the publicationof this law merely at Rome is

not sufficient.

It should be observed that in more recent times the

Holy See has been accustomed to transmit a printed copy of

the law to all nuncios, archbishops, and bishops, who, upon

its receipt, publish it. to their respective subjects. This pub

lication, however,is

not promulgation.We have said in our question, for the whole Church. For,

laws made for particular countries, and not for the entire

Church, are not published in Rome, but are simply sent, in

printed copies, to the Primate, or also to each archbishop

and bishop of the respective country.48

40. Q. Are Papal laws binding all over the Catholic

world as soon as they have been promulgated in Rome?A. i. A distinction should be drawn between the bind

ing force of a law in actu primo and in actu sccundo. A law

binds potentiallyfrom the very moment it has been promul

gated.But its binding force does not become operative in

the case of a particular country until it has come, or at

least could have come, to the knowledge of the latter.43

Consequently, although a general Papal law binds in actu

primo all over the Catholic world, from the moment it has

been promulgated at Rome, yet it does not actually bind

the faithful in a particular country until it has become

known to them, or till after the lapse of a certain period of

time during which it could easily have come to their

knowledge.

Q. Now how long a time is to elapse between the pro

mulgation of the law at Rome and its binding force in a

particular place ?

A. There are two opinions. The first maintains that the

law becomes obligatory immediately upon those who reside

in the curia or about Rome, but upon others only after the

46 Bouix. 1. c., p. 270."

Satiti, 1. c., n. 24



Source of Canon Law, 260

lapse of a certain time, to be computed according to the

distance of place. The second, which is termed the more

probable opinion by St. Liguori,60

holds that, unless the

time is fixed by the law itself, no person whatever falls under

the law save after two months from the date of its promulga

tion;but that after that period it binds everywhere. In

fact, no one can doubt that, at the present day, a law

promulgated in Rome can be easily known all over the

world in two months.

41. Q. What is the right and duty of bishops in regard

to making known and observed Papal laws, as also decrees

and instructions of the Sacred Congregations, v.g., of the

Propaganda ?

A. The bishop is the guardian of the law, general and

particular,in his diocese. Consequently it is his right and

duty, on receipt, direct or indirect, of an authentic copy of

the law, decree or instruction, from Rome, to notify or

inform the clergy, and also the faithful if the law concerns

them under his charge, of it, and take all the other neces

sary stepsto cause it to be observed/"

However,this

official announcement or notification is not promulgation,

save in a broad sense.52

42. Q. When do the laws enacted by the secular govern

ment, also with us, generally begin to bind ?

A. In France, the Code Napoleon declares that laws are

.binding from the moment their promulgation can be known.6*

With us,

"

a statute or law operates from the very day it

passes, if the law itself does not establish the time."51

In fact,

the laws enacted by our State legislatures generally state

expressly that they take effect immediately after their pa&

50Si. Liguori, 1. i., n. 96 sq.

51Ib.. n. g6.

6 -

Bouix, 1. c., p. 242.

BX Kern. Com., vol. i., p. 458.

54II)., p. 4?;.




sage. Kent, however, very justly observes"

that it would

be no more than reasonable and just that the statute or law

should not be deemed to operate until it was duly promul

gated."

"

Hence the New York Revised Statutes are in

harmony with justice and equity when they declare "that

every law, unless a different time be prescribed therein, takes

effect throughout the State on, and not before, the twentieth

day after its finalpassage."

43. It should be observed here that secular governments

or national and state legislatures have nearly everywhere

discarded the practice of promulgating their laws in each

province. However, they cause them to be published either

in an official newspaper, or in various newspapers issued in

the different localities affected by the laws. This publica

tion is intended as a convenience to the public, rather than

as a formal promulgation.

ART. V.

Various Kinds of Apostolic Constitutions or Letters.

44. Apostolic letters or constitutions are divided :

I. By reason of their subject-matter (quoad materiam] into,

a, common ordinances (ordinationes communes), which enact

or establish something for the entire Church, or at least for

a considerable part of it; b, into particular ordinances (ordi

nationes particulares), which lay down prescriptions for a

private person only, or in some transient affair."

45. i. Common ordinances are made up of constitutions,

properly so-called, decrees, decretal epistles, and encyclicals."

a. Constitutions (constitutiones), properly speaking, are

"

Kent, Com., vol. i., p. 458.

"

Ib., p. 459.

wBoiiix,

DePrincip., pars ii., sect, ii., cap. vii.

MIb.




tnose Apostolic letters which ordain, in a permanent man

ner, something for the entire Church, or part of it.63

b. By decrees (decreta) are meant the constitutions just

mentioned, when issued by the Roman Pontiff not in reply

to questions addressed to the Holy See," but motu pro-

prio, with or without the advice of the cardinals.86

The

term "

decree"

is, however, not unfrequently used to de

note Pontifical laws or enactments of every description.68

c. Decretal epistles (decretales epistolae, responsa) differ

from decrees only in that they are dictated6T

in reply to

questions of bishops or other persons.88

They have the force

of general laws, being framed for the purpose of deciding in

similar cases, save whensomething

is ordaineddispensa-

tively (dispensative)."

9

d. Encyclicals are the above-mentioned constitutions or

decretals when addressed to the bishops of the whole world

or of some country. Encyclicals are generally made use of

by Popes in order to determine some point of doctrine o

abolish abuses, as also to introduce uniformity of discipline.

46. 2. By particiilar ordinances (ordinationes partic*

lares) are meant those letters in which the Roman Pontf f

replies to persons who either ask for some favor or rep -rt

on some particular affair, or request directions for a t r an-

sient object or private individual. These letters are na ned

rescripts (rescripta).71

47. II. Quoad formam, or viewed as to their form, Pon

lineal letters or constitutions are divided into Bulls andBriefs. For the Pontifical letters which are mentioned above

are issued in the form either of a bull (bulla) or of a briei

(breve);" though, at present, frequently in neither of these

forms.

48. Bulls, so-called from the seal, whether of gold, silver

63Bouix, De Princip., p. 273, pars, ii., sect, ii., cap. vii. Cfr. Craisson, Man.

n. 47. M Ib. 65 Notes on the Sec. PI. C. Bait., p. 18.

"

Bouix, De Princip., p. 274.61 Notes on the Sec. PI. C. Bait., p. 18, n. 21

48Bouix, 1. c., p. 274.

t;9Ib. Ib. (4)

"

Ib., p. 274. Ib., p. 275.




or lead, which is appended to them, begin thus:" Leo

(or the name of the reigning Pontiff) Episcopus, Servus ser-

vorum Dei" Briefs begin with a superscription having the

name of the reigning Pontiff, thus: Leo PP. XIII. For

merly bulls had appended on a silken or hempen cord a

leaden (sometimes silver; or even gold) seal, and were more

over written

uponthick, coarse, and somewhat dark parch

ment, in old or Teutonic letters, and without any punctua

tion. At present, according to a motus proprius of Pope

Leo XIIL, now happily reigning, issued Dec. 29, 1878, the

wse of Teutonic characters is entirely abolished, and the

ordinary Latin mode of writing substituted ;the use of

the leaden seal is restricted to the more important bulls.

The other bulls, like briefs, have a redseal

impressed,and are written on fine white parchment.

75 The new red

seal of bulls, as prescribed by Pope Leo XIIL, bears on

its face the images of St. Peter and St. Paul, surrounded by

the name of the reigning Pope.18

ART. VI.

Of Rescripts (De Rescriptis).

49. For definition of rescripts, see n. 46. See also Bizzarri,

Collectan., p. 666, for the latest decisions concerning rescripts.

What force have resciipts? Thev have the force of law,

inter paries that is, among those only for whom they were.

given.7 &

Thus, a rescript conceded to aplaintiff, granting a

trial wit/tout appeal, is equally beneficial to the defendant, who

may wish to bring a counter-action against the plaintiff.79

TiBulls are generally not signed or subscribed b,y the Pope, but only by

several officials. Consistorial bulls are signed by the Pope. Phillips, vol.

iii., p. 646.

t4 Placed in the first line, and not in the shape of a superscription, title, or

heading. Bulls have no heading. Cfr. Phillips, Jus. Can., vol. iii., sect. 154,

p. 645. Edit. Ratisbon, 1850.

75 ActaS. Sedis, vol. xi., 1879, p. 465. "Bjuix, De Princip., p. 277.

77 Reiffcnst., lib. i., tit. iii., n. o.

"See our Notes on Sec. PI. C Bah., n. 23, p. 19 Sse alô Dcvoti Pro-

iegoin . xxxvi. Edit. Ivodii, 1860.7 J

Reiffens .. 1. c.. n. 10.




50. Though rescripts have not of themselves the efficacy

of universal laws, yet they may serve as precedents, and be

applied to cases*"*

of a similar kind, and hence they some

times acquire indirectly the force of common laws. Theyhave the same force when inserted in the Corpus juris.

51. How many kinds of rescripts are there?

We answer, i. Some rescripts are contra legem, others

praeter legem, and others finally secundum legem.81

2. Rescripts are again divided into rescripta gratiae and

into rescripta justitiae. The latter, termed also rescripta

ad lites, are those in which, for instance, the Pope, in causes

devolved upon him, constitutes delegated judges."The

former, called also rescripta ad beneficia, are those which

bestow benefices or other similar favors.83

52. How are rescripts vitiated?

We answer: In a threefold manner.

1. By defect in persons (vitio personarum) that is

when parties are incompetent either to give or to obtain

rescripts.84

2.

Bydefect in petitions (vitio

precum),

which either

suppress and conceal the truth or contain a falsehood that

is, ere either surreptitious or obreptitious.85

In canon law,

the terms subreptio and obreptio are interchangeable and

used synonymously/8

so far as concerns the matter under

discussion.37

3. By defect in the form (vitio formae), rescripts are

finally made void when, namely, the rescript wasnot

properly issued

88

e.g.,when some important word or sentence

is erased,89

etc.

53. Rescripts, at least of justice, are vitiated by defect

in petitions, when, by fraud or malice, a falsehood is

*"

See our Notes, p. 19, n. 23. Cfr. Reiffcnst., 1. c., n. 10, 12, 13, 14.

"

Rciffenst., 1. c., n. 22.M

Ib., n. 27, 28.83

Ib.( n. 29.

114

Soglia, Jus Publ., 29.&

5Ib., 30.

""ReiiT-.lib i.,tit. iii., n. 155."

Cfr. Soglia, . c ,30 ""Ib.^.

8

"Ib.,3r



3O Decrees of Sovereign Pontiffs as a

asserted or the truth suppressed;80

but if this is done

through ignorance or simplicity,and the latter was the

cause of obtaining merely the form of the rescript, it

does not annul the substance of therescript." Where,

however, the Pope would have absolutely withheld the

rescript, if the truth had been stated, the rescript is com

pletely voided, even thoughthe

surreption proceededfrom

ignorance or simplicity."

54. The execution of Papal rescripts is usually com

mitted to ecclesiastical dignitaries.93 At present, however,

simple confessors are frequently entrusted with the execu

tion of rescripts, at least of the 5. Poenitentiaria, containing

dispensations from impediments of marriage.

It is incumbent upon the officials or dignitaries to

whom the task is entrusted of executing or giving effect to

rescripts to ascertain whether preces veritate nitantur;and

in case the facts or prayers upon which the rescript is

based are without foundation, these officials should so in

form the Pope before giving effect to the Papal letters.94

55. Q. How do rescripts lapse ?

A. I. Rescripta justitiae lapse at the death, resignation,

translation, or deposition of the person conceding them,

if at the time the cause or trial had not yet begun9 *

(re

adhuc integra) ;but not if proceedings had already com

menced in the case (re non amplius integra), v.g., by the

citation of the parties to the suit, made before the demise

of the person who granted the rescript.06

2. As to rescripta gratiae, we must distinguish between

the rescripta gratiae that contain a gratiam factam and

those containing merely a gratiam faciendam.97

a. Rescripts

containing a gratiam jam factam do not, even though res esf

&

Cfr. Soglia, 1. c., 30.C)

Ap. Reiffenst,

1. c., n. 159.wIb

"

Infra, n. 233.M

Phillips, Jus Can., vol. iii., 155. p. 654*

ReifTenst., lib. i., Decret. tit.

3.

n.

232, 235.

OT

Ib. n. 238, 241."

Craisson, Man., n. 71.




ad/nic intcgra, expire with the decease of the person con

ceding them." b. Rescripts that confer a gratiam faciendam

or a gratiam concessam non in proprium recipientis litteras,

sed in alterius" duntaxat favorem, lapse at the death of the

person giving them, si res est adhuc integra.

56. Now, rescripts contain a

gratiam

factam when, v.g.,

power is given in them to an individual or a religious com

munity to10

grant dispensations, to absolve, first, either per

sons in general ; or, second, persons in particular i.e., deter

minate persons, provided the person""

obtaining the rescript

in the second case is constituted the executor necessarius

i.e., is commanded, v.g., to grant a dispensation to Titius if

he knows the petition of Titius to be groundedin truth.

Such are ordinarily dispensations for marriages.

57. On the other hand, rescripts contain a gratiam primumfaciendam when they authorize the party obtaining the

rescript to confer, if he deems it proper or desirable, a favor

(v.g., a dispensation) upon a determinate person ; v.g., if the

Apostolic letters say : Dispenses cum Titio, conferas Caio

beneficium, si volueris, si expedire judicaveris.

102

In this-

case, the person who obtains the rescript is constituted the

executor voluntarius, and the gratia contained in the rescript

is not jam facta i.e., completely or absolutely103

bestowed

by the Pope, but is merely gratia facienda i.e., to be im

parted conditionally, namely, if the executor thinks proper

to do so.

58. 3. Rescripts, in general, may also lapse, by beingl04

revoked either tacitly or expressly (revocatione) and by

being renounced or refused (renuntiatione) by those per

sons in whose favor they were made.10

*"

Reiff., 1. c., n. 250.M

Ib., n. 251.

100

Ib., n. 254.101

Ib., 256, 257.10

Mb.,n. 258.

103Leuren, Forum Eccl., lib. i., Decret. tit. 3, Qaest. 363. Augustue Vin-

delicorum, 1737.JM

Ib., Qu. 361.*

Ib., Qu. 360.



CHAPTER IV.

VI, ON THE DECREES OF COUNCILS AS FORMING A SOURCE

OF CANON LAW.

ART. I.

Of (Ecumenical Councils.

59.Councils in

generalare defined :

"

Coetus auctoritate

legitima congregati ad tractanda negotia ecclesiastica, de

quibus Episcopi pronuntiant."

It is a mooted question whether councils are of divine or

ecclesiastical institution. CEcumenical councils are not abso

lutely necessary to the Church, though they are very useful.*

Councils are divided into oecumenical, national, provin

cial, and diocesan.

3

60. What are the essential conditions or requisites of an

oecumenical or general council ?

We answer :

4

1. An oecumenical council must be convoked by the

authority of the Roman Pontiff, or, at least, with his con

sent, and be presided over by him or his legates.6

2. All the Catholic bishops of the world are to be called

or invited, though it is not indispensable that they should

all be present.6

3. The acts of the council must be confirmed or ap

proved by the Pope.7

1

Bouix, ap. Craisson, Man., n. 77.*Craisson, I.e.

s

Ib., n. 79.

* See our Notes on the Sec. PI C. Bait., n. 33, p. 27.

* Devoti, Inst. Can. Prolegom., xxxviii. Leodii, 1860. Ib Ib



On the Decrees of Councils. 33

61. Who have the right of suffrage at general councils?

i. Bishops alone arejure divino* possessed by virtue of their

officeof the right of decisive vote. 2. Cardinals who are not

bishops; abbots-general of an entire order, but not abbots

of single monasteries belonging to a religious community

subject to a general abbot, superiors-general of religious

orders : all these have a decisive vote, though only by virtue

of privilege? 3.Procurators of bishops lawfully absent do

not possess, according to the general law of the church, a de

cisive vote. 1 hey received, however, from Pops Pius IV.

the right to cast a consnltive vote in the Council of Trent.&

Pope Pius IX. decided that in the Vatican Council the pro

curators of absent bishops could be present only at the

public sessions, and that without any vote, but not at the

private sessions."

62. What is the canonical mode or method to be ob

served in the celebration of oecumenical councils? I. There

must be freedom of discussion, or liberty in decisions and

judgments. All acts extorted by fear and violence are (ipso

jure) null and void. 2. No fraud or deceptionmust be

practised on the Fathers. 3. There must be, moreover, a

sufficient examination into the questions submitted to the

council. Once, however, the council has defined a question,

no doubt can any longer be entertained as to whether the

council used sufficient care and deliberation in its definitions.

63. What is the authority of oecumenical councils?

We answer: The decrees of general councils have the

efficacy of universal laws, and constitute, therefore, one of

the sources of canon law, in the strict sense of the term.12

64. Q. Is the Council of Trent received in the United

States (quoad disciplinani] ?

8Soglia Vecchiotti, Inst. Can., lib. i., 39. Ib.

* Bened. XIV., De Syn.. 1. 3, c. 12, n. 5."

Soglia-Vecchiotti, 1. c.

11Craisson, 1. c., n. 89



34 On the Decrees of Councils

A. We say "quoad disciplinam" 18

since no one will

doubt that, in matters of faith, the Council of Trent fully

obtains with us.

We now give a direct answer: i. The disciplinary law

<>f the Council of Trent is not, as a whole or in its entirety,

in force with us, though many of the decrees of Trent are

made obligatory throughout this country by the Fathers of

the Second and Third Plenary Councils of Baltimore. 19

2. Again, the Fathers frequently express their sincere

desire of approaching and conforming to the prescriptions

of the general law of the Church, and therefore of the

Council of Trent.20

3. Kenrick writes :

"

In Conciliis Baltimorensibus passim

allegantur (Decreta Concilii Tridentini), licet universa (de-

creta) non sint speciali decreto promulgata."

2I

We observe

that even the disciplinary decrees of the Council of Trent

do not, per se, require any promulgation in this country, in

order to be binding with us.23

ART. II.

Of Particular Synods, whether National, Provincial, or

Diocesan.

65. National councils are those to which the Bishops of

a whole nation are summoned.23

These councils are con

voked by the Patriarch, Primate, or other dignitary having

competent authority.

21

The Archbishop of Baltimore cannot convene national

or plenary councils by virtue of the praerogativa loci,

"

Cfr. Craisson, 1. c., n. 93.

19See Acta et Decreta, n. 56, Cfr. Cone. Trid., sess. xxiv., cap. 2, De Ret

10Concil. PI. Bait., ii. passim, n. 59, p. 47.

2IMor. Tract iv., n. 15.

wIb., Tract xviii., n. 144.

"


14

De- oti, Prolegom , xli.



as Forming a Source of Cation Law. 35

attached to the Sec of Baltimore. As a matter of fact,

however, the Holy See appointed the Archbishop of Balti

more Apostolic Delegate to assemble and preside over the

three national councils, so far, held in this country: the one

in 1852, the other in 1866, and the third in 1884.

The Roman Pontiffs were wont to hold national synods

of Italy down to the seventh or eighth century. Suchcouncils were also customary in Africa.

26

66. Councils are named provincial when the Bishops ol

a province are called together by the Metropolitan," though

it is not essential that they should all be present at the

council.

67. How often are provincial councils to be held ?

We answer : I. In the first centuries of the Church, they

were celebrated twice ayear."

2. The Third (Ecumenical

Council of Constantinople prescribed that these councils

should take place once a year. 3. Finally, the Fifth Lateran

Council, as well as that of Trent,29ordained that they should

be convened once every three years.30

68. It may be observed that but very few provincial

councils were held within the last three centuries in France,

Germany, Austria, Spain, and even in Italy, save those of

Milan under St. Charles Borromeo. Hence it would appeal

that the Holy See tacitly consents to this custom.31

69. In the United States, provincial council and dio

cesan synods are more numerous. This is owing in nc

small degree to the fact that our government has nevei

thrown in fact, could not throw any obstacles in the way ;

while in Europe the governments but too frequently inter

fered with these meetings."The law enacted by the Council

of Trent to wit, provincial councils should be held every

** Notes on the Sec. PI. C. Bait., n. 34, p. 28.

96

Soglia, 1. c., torn, i., 37.*

Craiss., 1. c., n. So.M

Ib., n. 8r.

Sess.24, cap. 2, De

Ref.30

Bouix, Concil. Provinc., p. 420-425.*Cmisson, 1. c., n. Si.

wCfr. Phillips, Jus Can. t. ii., p. 274.



36 Ou the Decrees of Councils

three years should be accurately observed throughout the

United States.33

In parts of the West Indies, these councils

are held once every four years.31

|3iP 70. Q. What persons should be called to provincial

or national councils, also in the United States?

A. i. All the Bishops of the province or nation. Theyare

obligedto come in

person,unless

theyare

lawfullyhin

dered.3 &

If they are lawfully hindered, they are bound to

send procurators to represent them. 2. Apostolic adminis

trators appointed by the Holy See for dioceses whose

bishops, though still living, are either unable or incapaci

tated to govern the diocese. 3. Vicars capitular with us

administrators of dioceses sede vacante 4. Vicars-apostolic,

who exercise jurisdiction in districts not yet erected into

bishoprics.37

(Cone. PI. Bait. II., n. 60, notei.) 5. Cathedral

chapteis; they have a right to be present at the council

through their delegates or representatives chosen by them

selves. 6. Abbots possessed of jurisdiction not only over

their monasteries, but also cf quasi-episcopal jurisdiction

over the secular clergy and laics in a certain part of the

province or nation. 30

These six classes alone have a right to be called dejure to

the councils in question.33

For they alone possess episcopal

or quasi episcopal jurisdiction. However, by custom, also

in the United States, the following persons are also called

to the councils: i. Coadjutor and auxiliary bishops of the

province or of the nation, and also strange bishops who

mayhappen to be in the province or country at the time;1*

2. Provincials of regulars; 3. Rectors of major seminaries,

4. Mitred abbots who have jurisdiction merely over their

a3 Cone. PI. Bait. II., n. 56, 57.3 &

Coll. Lac.. 1. c., p. 1103.35 Cone. Trid. sess. 24, c. 2, De Ref. a6 C. PI. Bah. II., n. 60.

"

Cf. infra, n. 524.

18 There are no abbots in the U. S.

who have such quasi episcopal jurisdiction.39 Con. PI. Bait. II.. n. 60. Bouix De Cone Prov., p. in sq.; ib., p. 122;



as Forming a Source of Canon Law. 37

monasteries, and not over seculars; 5. Finally, those

persons whose services the bishops wish to make use of41

v.g., those priests whom bishops usually take along with

them to the council, as their theologians or canonists." Be

sides, all priests or ecclesiastics who think themselves in,

jured may present their grievances to the council." Lay.

men are sometimes invited to attend some of the sittings,

either to act as notaries, as was done in several of the Prov."

C. of Westminster, England ;or also- in order to explain cer,

tain matters : thus, several eminent lawyers were admitted

to one of the public sittings of the First Prov. C. of Balti.

more, in order to explain certain points of the civil law in

relation to Church property.4

Not all persons, however, who are invited to the councu

have a right to a decisive vote. For to cast a decisive vote

is to concur in making laws for the province or nation, and

is therefore an act of episcopal or quasi-episcopal jurisdic

tion." Hence, by the general law of the Church, only those

have a decisive vote who exercise episcopal jurisdiction in

the

province

or nation,

namely:i. The

bishopsof the

province or nation;

2. Apostolic administrators of dio,

ceses; 3. Vicars-apostolic of districts

; 4. Vicars-capitular or

administrators of dioceses sede vacante ; 5. Abbots possessed

of quasi-episcopal jurisdiction over the secular clergy and

laity in a certain part of the province or nation.

The following have only a consultive vote, by the gen

eral law:i.

Auxiliary and coadjutor bishops, and alsoother titular bishops who live in the province or countrv,

but do not exercise episcopal jurisdiction therein, also

strange bishops who may happen to be at the council;

procurators of bishops lawfully absent. All these may re

ceive the right of casting a decisive vote, if the council con-

41 Cone. PI. Bait. II., n. 60. Coll. Lac., 1. c., p. 1415, n. 20.

43 Ferraris, 1. c., n. 26. Coll. Lac., 1. c., pp. 974, 999, 1026, 106645

Ib., p. 15."8

Ib., p. 114.



38On the Decrees of Councils

sents.47

In the United States it is the custom for all of these

persons, except visiting Bishops, to cast a decisive vote.

2. Cathedral chapters." 3. Mitred abbots and general su

periors of orders. 4. Provincials of regulars, rectors of

major seminaries, and the theologians of the bishops.

See the acts of the Third Plenary Council of Baltimore, p.

Ixiii, where the discussion andvote of the Fathers are

givenon the admission and right of voting of abbots and superiors

of regulars. After mature deliberation, the Council decided

to give the right of decisive vote to the two abbots general of

their orders, who were present; namely, to Rt. Rev. Wim-

mer and Rt. Rev. Mundwiler; and also to Rt. Rev. Sorin,

Superior-general of the Congregation of the Holy Cross.

The motion to extend the same privilege to all the other

abbots of single monasteries was rejected by the Council.

71. In provincial councils matters are settled by a major

ity of votes. Metropolitans have no preponderating voice,

even when there is a tie.49

72. The decrees of provincial councils must be submitted

to the Holy See (in the U. S., and other missionary coun

tries, to the Propaganda ; elsewhere, to the S. C. C.) before

being promulgated.50

This is done, not that these decrees

should be confirmed by the Holy See, but that whatever

may be too stricter somewhat inaccurate may be corrected;

though, not unfrequently, they have been not merely revised

and, if necessary, amended, but also confirmed by apostolic

letters at the request of metropolitans/11

It is lawful to appeal from these councils when they

are not approved in forma specified since it sometimes hap

pens that these councils, even after being corrected by the

41Bouix, De Cone. Prov., pp. 1 19. 125.

48Ferr., v. Concilium, art. ii., n. 15.

49 Craisson. n. 85.50 Sixtus V. Constit. Immensae, ap. Craisson, n. 86.

* Bened. XIV. De Syn. Dioec., lib. xiii., cap. 3 ,n. 3, 4.

M Craiss., n. 87. Bouix, De Episc., torn, ii., p. 392.



as Forming a Source of Canon Law. 39

Holy See, yet contain certain regulations which are rather

tolerated than approved by the SacredCongregation."

None of the provincial or national councils of the U. S.

seems to be approved in forma specifica.

73. What has been said of provincial councils is, in most

respects, applicable to national councils.54

. Provincial coun

cils are convened by the metropolitans in person, or, if tueybe lawfully hindered, by the oldest

55

suffragan bishop. National councils in the U. S., on the other hand, are assem

bled by express direction of the Sovereign Pontiff, who ap

points a representative of his authority in the apostolic dele

gate he commissions6

to preside over them.

74. Eachbishop may,

in individual cases, relax in his

diocese the decrees of prov. or national councils, unless it be

said that they are approved in forma specifica.57

Provincial

councils, as was seen, are called by the metropolitan ; some

times, however, the convening and celebration of these

councils were agreed upon in a special meeting of the

bishops of the Province, held beforehand for that purpose ;

as,for

instance,in the case of the

Fourth Prov. C. of Quebecin 1868, and in the case of the Second Prov. C. of Australia,

held in the city of Melbourne in i860.68

In regard to dio

cesan synods, see our "

Notes."5

&

*3

Gousset, ap. Craiss., n. 87.

MCfr. Soglia, vol. i., p. 74. Ferraris, v. Concilium, art. i., n. 5.

"

Cone. Trid., sess. 24, cap. 2, De Ref.M

Coll. Lac., 1. c., p 250.47

Kenrick, Mor. Tract. 4, vol. i., p. 118. Cfr. Notes on the Sec. PI. C.

Bait, p. 438.

**Coll. Lac., vol. iii., p. 1057, 1058, 1415, n. 14.

**

p. 30.



CHAPTER V.

VII. ON THE ROMAN CONGREGATIONS AS A SOURCE OP

CANON LAW.

ART. I.

Efficacy of the Decisions of the Sacred Congregations.

75. Later on we shall treat of the various functions and

powers of each of these congregations. At present, we shall

merely consider the force of the decisions or declarations

(declarationes) of the Roman congregations. Congregations

of cardinals (congregationcs cardinalium, congr. Romanae)

are committees or commissions composed chiefly of cardi

nals, to whom the Sovereign Pontiff refers certain matters

that relate in a special manner to the Church.

76. There are two kinds 3 of congregations : I, permanent

or standing committees or congregations (congregations

ordinariae}, those, namely, which are permanently estab

lished; 2, temporary congregations (congrcgationes extra-

ordinariae], or those which are convened3

to attend to some

particular or transient matter only, and therefore have no

permanent existence. We shall here consider the decisions

of the congregationes ordinariae only. The following are con

gregationcs ordinariae : Congregatio Sacri Officii or Inquisi-

tionis, Congr. Indicis, Congr. Consistorialis, Congr. Episco-

porum et Regularium, Congr. Sacrorum Rituum, Congr. de

Propaganda Fide, and several others.4

Salzano, 1. c., vol. i., p. 76. *Ib., p. 77.

1 Phillips, Kirchenr, vol. iv.j& -joQ, 9.495, Ratisbon, 18504

Phillips, l.<r




77. The question therefore comes up : Have the declara

tions of these congregations the force of universal lawr

The question is asked especially in reference*

to the Congre-

gatio Concilii, because of its special powers. We ask, there

fore : Are the decisions of the Congr. Cone, binding on the

entire*

Church ? There are three opinions : The first de

nies that these decisions have the efficacy of common law,

i, because this S. Congr. merely uses the words "

censuit,

censcmus" but does not employ any imperative or pro

hibitory terms in its declarations; 2, because these decisions

are issued for particular cases only. For other reasons, see

Bouix.8

Hence, say the defenders of this opinion, the Pon

tiff speaks through this congregation only as its president,

and not as head and doctor of the Church."

78. The second opinion affirms that these decisions, when

authentic, i.e., when signed10

by and having the seal of the

prefect and secretary of the respective congregation, are of

the same authority as though they had emanated directly

from the Pope, and are, therefore, binding on the entire

Church, evenMwhen issued for a

particular

case

only.79. The third distinguishes thus : These declarations are

of two kinds: I, dcclarationcs cxtcnsivae, i.e., those which

extend, as it were,12

or stretch the meaning of words beyond

their ordinary signification, and grant or prohibit something

accordingly. These decisions,13

forming, as it were, new

laws, do not obtain the force of law unless they are issued

by the special order of the Pope, and properly

u

promul-

*


* We say "entire Church"; for it is certain that these decisions have the

force of law in casibits particularilnts, pro quibus fiunt ; but are they binding

also in casibus similibus ? Here there are three opinions, as given above

(Cfr. St. Liguori, lib i., n. 106, Quaer. 2. Mechliniae, 1852.)

7

Sanchez, Diana, Bonac., Laym., ap. Bouix, De Princip., p. 338.*Ib.

*

Craisson, 1. c., n. 98."

Phillips, Lehrb., 43, p. 79.

11

Bouix, De Princip., p. 341.ia

Ib., p. 344.

*Cfr. Phillips, Lehrb., 43, p. 79.

"

Craiss., n. 100



42 Source of Canon Law.

gated ; 2, by declarations comprehensivae we mean those

which do not depart from the ordinary sense of the words

of the law; which, therefore, are mere explanations of,

15

but

not additions to, the law ;which consequently have the force

of universal law, and are retroactive.

80. Q. What is the practical consequence of this diver

sity

of

opinions

?

A. One of the above opinions denies that the decisions

of the Congr. Concilii have the efficacy of law; now, the Holy

See has so far allowed this opinion to be taught in Catholic

schools of learning.16

Hence, it is lawful to hold that the

declarations of the Congr. Concilii are not to be received as"

universal laws. Nevertheless, it were rash to assert that

these declarationscan be

practicallyset at

naught;

18

for

they are made by authority of the Holy See, and therefore

must, at least ordinarily speaking, be complied with."

Si. Have the decrees of the other congregations, v.g. tof

the Congr. Rituum," of the Sacra Poenitentiaria, etc., the

force of law that is, are they binding on the entire Church ?

The three opinions above given also exist in this case.

Hence, what has been said of the Congr. Concilii applies to

all other congregations."

"Bouix, De Princip., p. 344."

Bouix, De Princip., p. 345-

17

Ib., 1. c.. p. 345-I8

Ib., p. 347-: &

Ib-> P- 346.

20 The sententia communissima holds that the decrees and decisions of the

Congr. Rituuin bind in casibus similibus. Gury, vol. i., n 130. Romae, 1869.

11

Ib., p. 347-



CHAPTER VI.

VIII. ON CUSTOM AS A SOURCE OV CANON LAW.

ART. I.

Nature and Division of Custom.

82. Q. What is custom, and how is it a source of canon

law?

A. i. Custom may be considered as a/^c/and as a laiv.1

Regarded as a fact (consiietudo facti\ it means the repeated

and continuous acts of a community. If custom be viewed

as a law (consuetudo juris), as we take it here, it signifies the

effect or obligation produced by the above continuous acts.*

Hence custom as here understood is denned : An unwritten

lawobliging persons

to do or omitsomething,

introduced

bylong-continued, free and public acts of a community, with

the approbation, express, tacit, or presumed, of its law-giver.*

We say law; for, as we shall see below, custom has the same

force as a written law, and differs from the latter merelv in

the manner in which it begins. We say introduced by con

tinuous acts, etc.;because custom does not, like a statutory

law, derive its binding force from the expressed will of the

law-giver or from a formal promulgation, but simply from

the long-continued acts of a community. Hence it is called

an unwritten law." We say community; custom has the

force of law, and therefore binds not merely certain indi

viduals, but the whole community in which it exists. Con

sequently it is but fair that custom should receive this bind

ing force from the consent, expressed by free and long-

repeated acts, of the whole community, or at least the greater

part of it.6 Hence the repeated acts of an individual or of a

family can never constitute custom.8 The word commun

ity, however, is here taken in a broad sense, and compre-

1 De Angelis, 1. i., t. 4, n. i.* Leur. For. Eccl., 1. i., t. 4, q. 365.

3

Schmalzg, 1. i., t. 4, n. I.4 De Angelis, 1. c., n. 2.

5 Schmalzg., 1. c., n. 3. Suarez, de leg., 1. 7, cap. 7, n. 6.

43



44 OH C^tstom as a

hends, v.g., cathedral chapters, the clergy orlaity of a

diocese, religious communities, etc.7

83. 2. From what has been said, it is evident that custom

is a source from which springs ecclesiastical law,.both gen

eral and particular. For custom, properly constituted, pro

duces law, general or particular, binding upon the respect

ive

community,just as strictly and fully as a written law.

8

84. Q. What are the various kinds of custom ?

A. Custom is divided as follows: i. According to its

different effects, into that which is (a)in full accord with the

written law (secundum legem); (ft)beside or beyond it (praeter

legem); v.g., where, by custom, fast is kept on a day when

the law does not require it; (c) directly opposed to it (contra

legem); v.g., where by custom

fast is notkept on a day on

which the law prescribes it. 2. According to its efficient

cause, into (a) universal, or that which obtains throughout

Christendom; (b] general, which prevails in an entire prov

ince or state; (c) particular, which exists in some city or

town.9

3. According to its formal cause, \\\\.ojudicial and

extrajudicial. Judicial custom is induced by several similar

judicial decisions in the same kind of causes. Two such

decisions given within ten years suffice, provided no con

trary decision was rendered during that time. Extrajudicial

custom is established by long usage out of courts.10

85. Q. What are the main differences between custom

and prescription ?

A. i. Prescription may be introduced by private or

particular persons, while custom can be established by a

community only.11

. 2. Prescription tends to the acquiring of

some right by individuals ;lz

while custom establishes a law,

and therefore affects a whole community, i.e., all who dwell in

the localityin which the custom prevails.

13

7Schmalzg., 1. c.

8

Cap. 9, n, de Consuet. (i., 4).

9Reiff., 1. i., t. 4, n. 14 sq.

&

Ib., n. 18.

11Craisson, Man., in. 1S

Reiff., 1. c., n. 23, 24.13

Bouix, 1. c., p. 356.



Source oj Canon Law. 45

\RT. II.

Of the Essential Conditions of Custom.

?. In order that custom may have the force of law cer

tain conditions are indispensable : I, on the part of the com

munity ; 2, of t .io Rj<r\an Pontiff; 3, of custom itself; 4, of

the duration ri CJS .OFI.

87. I. On llie part of the community (ex parte communi-

tatis), it is requisite that custom be introduced : i, by a com

munity ; 2, by the greater part of this society ; 3, with

due knowledge or consciousness; 4, with liberty; 5, with

the intention of contracting an obligation, if there is ques

tion of custom praeter legem ; 6, that the frequency of acts

be not interrupted19

before the custom is completely estab

lished. We say, i, by a community -that is, not merely

by one person or a private family,20but by a community that

can make its own laws, v.g ,a city

21

or State. Thus, an

ecclesiastical custom relating to the clergy and laity can be

introduced by the clergy and laity of a diocese, province,

or country ;in like manner, a custom pertaining to the

clergy only may be established by the clergy of a diocese

or province. The same holds good of religious orders""

and

the like. We say, 2, by tJie greater part of the society. For Ji

is a general rule, that only the acts of a majority~*

are bind

ing on a community. We say, 3, with due kncnvlcdge that

is, not

through ignoranceor error. This condition is of no/

ordinary importance. In France, for instance, and perhaps

also in the United States, the impression seems to prevail

that rectors of parishes, who are"

ad nutum episcopi revo-

cabiles," may be removed by the bishop in such manner that,

no case can they have recourse to the Holy See. Ye

19

Bouix, 1. c., p. 357.20Ib , p. 358.

11

Suarez, \)e Leg., lib. viik, cap. i\., n. 5, pars, a, p. 294. Neapoli, 1872.

"Bûix, 1 c., p. 358.3S

Cfr. tamen Suare?., 1 c . n. ro, in fine.



46 On Custom as a

i

it is the general opinion of canonists that these pastors have,

"ex jure communi," the right of recourse84

in nil cases. It,

therefore, this belief, whether on the part of the bishops or

of the clergy, is based upon an erroneous impression, which

appears certain, no right of custom would follow from**

their actions in this respect. 4. The acts must be free i.e.,

not extorted

byviolence or fear; 5,

public;

20

6, the inten

tion of contracting an obligation is the next requisite of cus

tom. This applies chiefly to customs praeter legem. Hence,

acts of devotion, such as the hearing of Mass on week

days,27

going to confession frequently during the year, and

the like, do not produce custom having the force of law;

7, the acts must"8

not be interrupted, even by a single

contrary action, before the complete formation of cus-

88. II. On the part of custom itself (ex parte ipsius consue-

tudinis) it is required that customs should be good and rea

sonable; hence, they should not be opposed to the divine or

natural law," nor reprobated by canon law, nor give occa

sion to sin; neither should they be adverse to the cor.mon

interests of the community, or subversive of ecclesiastical"

discipline.

89. III. Ex parte principis. The term"princeps"

here

means the supreme lawgiver of a society ;the Roman Pon

tiff is therefore rightly called the"

princeps"

of the Church."

Now, is the consent of the Pope necessary in order that cus

toms may have the force of law? There is no doubt that

this consent is, in some sense,3

&

indispensable. For, customs

are laws, and should therefore, whenever there is question

"Bouix, De Princip., p. 359, 360. ^Cfr. Reiff., lib i., *U. 4 n \th.

**Sunrez, De Leg., lib. vii., c. ix., n. 4, and cap. ix., n. i, 2.

"

Reiff., 1. c., n. 129.

SBSt. Liguori, lib. i., Tract, de Lege, n. 107. Mechliniae, 1854,

MCraiss., n. 120.

30Bouix, 1. c., p.

364 seq.Ib., p. 370.

32Ib.

? p. 360).



Source of Canon Law. 4.7

of common ecclesiastical laws, emanate"

from or have the

sanction of the Holy See.

90. We said : The consent of the Pope is, in some sfnse

indispensable. Now, what kind of consent is essential r

The Pontiff may give his consent expressly, tacitly, and

legally.34

i. As to the express consent, there ran be no

difficulty ; for it is certain, that as soon as tli j Pope ex

pressly sanctions a custom, whether it be /-raster or con

tra jus,3 *

such custom obtains the force of Jaw. 2. The

Sovereign Pontiff is said to consent tacitly, when, though

aware of a88

custom, he does not oppose it. Is this

consent sufficient tolegalize" customs, whether praetei

or contra jus ? It is, provided the customs in question

are reasonable, and the Pontiff may easily protest against

them. If, however, he cannot38

prudently protect against

customs, contra jus, v.g., because he may, by his disapproval,

occasion schism, persecutions on the part of the civil power,

and the like, such customs do not prescribe against the law.

3. As to the legal consent, we cannot do better than describe

it in the words of Bouix:39 "

I. Consensus dicitur legalis .

quando summus Pontifex ignorat consuetudinem, et illi non

consentit nisi per voluntatem generalem, qua vult omnei

consuetudines rationabilcs et Icgitime pracscriptas firmas esse

et vim legis habere. 2. Supponitur autem semper in sum-

mo Pontifice voluntas haecgeneralis." Now, is this con

sensus legalis sufficient to legalize customs ? The question is

controverted;

the"

sententia multocommunior

" 40

affirmsthat this consent is sufficient.

41

Note, i, the Pope in thus

consenting is not cognizant of the custom in question ;

"

2, a

custom cannot be approved by"

consensus legalis"

unless it

wCraiss., n. 124.

MIb., n. 125. "Bouix,

De Princip. p. 371

**

Ib., p. 372, 373.*

Craiss., n. 126.8e

Bouix, 1. c., p. 374

"L. c., p. 382.40

Bouix, 1. c., p. 382, 383.

* Suarez, De Leg., lib. vii., cap xiii., n. 6.

*"St. Liguori, lib. i., De Lege, n 107, v.



48 On Custom as a

is rationabilis and legitirne praescripta. Now, when are cus-

toms lawfully prescribed5 The answer is contained in the

following paragraph.

91. IV. Ex parte temporis sen diuturnitatis. A custom

besides being good must be legitirne

"

praescripta. Now,

what length of time is requisite to constitute legitimate pre

scription?

Before answering,we

premise:I. Customs,

which are intrinsically evil, can44

never obtain the force of

law by virtue of prescription ; 2, if the Roman Pontiff con

sents to a custom personally, i.e., either expressly or tacitly,

there is no need of prescription, since custom, so soon as it

obtains this sanction, acquires the force of law.45

3. Prescrip

tion, therefore, can legalize those customs only of which the

Pope is not cognizant, and to which he can, in consequence,

give but a legal consent.46

92. We now answer directly: i, With regard to customs

praeter legem, the space of ten years is sufficient. This is

universally47

admitted; 2, as to customs contra legem, there

are three opinions.48 The first holds that the space of ten

years is always sufficient. The second distinguishes be

tween laws once received and those never received.49

Thelatter may be abrogated by decennial custom to the con

trary ;the former, only by one of forty years. The third

opinion maintains that the space of forty years is always

necessary.6 &

93. What follows from this diversity of opinions ? i. Ten

years are certainly required ; 2, forty years are undoubtedly

sufficient; 3, practically speaking, it would seem that no

custom can abrogate laws unless it has existed forty years.6

Is good faith indispensable to prescription against laws?

(contra legem). The question is controverted.6

41Bouix, 1. c., p. 357.

"

Ib., p. 385. Ib.. p. 386.<e

Ib., p. 386.

47Reiff., lib. i., tit. 4, n. 91.

4HDevoti, vol. i., p. 38. Leodii, 1860.

40Bouix, 1. c., p. 388. "Craiss.n. 135.

51

Ib., 0.136. "Ib., n. 137




ART. III.

What are the Effects of Customs ? How are Customs Abro

gated ?

94. Effects of Customs, A custom having the requisite

conditions may, I, authentically63

interpret laws; 2, abrogate

pre-existing laws; 3, introduce new obligations or laws; 4,

invalidate acts contrary to it.54

95. How are customs abrogated? In three ways :

i. By subsequent laws. Here we must distinguish be

tween (a) general and particular customs, (b) immemorial

customs (i.e., customs thathave existed a

hundred years),and those which are "within the memory of men. i. A

subsequent general law abolishes all general customs opposed

to it, even when they are immemorial, and the law does"

not expressly mention them." We say: general customs ; for

particular immemorial customs are not thus abolished, un

less the law expressly abrogates every68

custom, etiam im-

memorabilis. 2. Particular customs, not immemorial, are

abolished by subsequent laws containing the clause, nulla

obstante consuetudme 3. Bishops, by their laws, can abro

gate any particular custom whatever in their dioceses.80

96. 2. By previous laws. We ask : Can customs prevail

"againstanterior laws, prohibiting all customs to the con

trary ? The question is controverted.61

The "sententia pro-

babilior" holds that customs may obtain against a prior law,

when the latter merely prohibits, but does not reprobate, cus

toms" to the contrary.

97. Q. Are these principles applicable to the decrees of

"

Reiff., lib. i., tit. 4, n. 158-160.MBouix, 1. c., p. 390-393.

"

Ib.

"Craiss., n. 139. "Reiff., 1. c., n. 182. ""Craiss., n. 140.

19

Bouix, 1. c., p 394. 60 St. Liguori, lib. i., n. 109.

"

Bouix, I.e., p 396 seq. Suarez, De Leg., lib. vii, cap. xix., n. ig, 20



v̂ o On Custom as a Source of Canon Law.

the Council of Trent i.e., can the Tridentine decrees be

abrogated by subsequent customs to the contrary ?

A. There are two opinions : The first seems to hold that

some disciplinary3

decrees may be abrogated by customs to

the contrary. There is no doubt that in France, and other

countries where the Council of Trent is promulgated, somfe

of its decrees were either never reduced topractice

orhave

fallen into desuetude. The second opinion maintains that cus

toms can in no case abolish any of the"

Tridentine decrees.

In fact, Pius IV., in his bull confirming the Council, ex

pressly declared that its decrees shall have force against any

custom whatever that may afterwards be introduced. It

would& 5

seem that the Holy See, in its decisions, has always

adhered to this opinion.

06

The Council of Trent is not, in

its entirety, published in the United States.

98. Q. What is to be thought of some ecclesiastical cus

toms prevalent in the United States ?

A. Kenrick07

replies:"

Legibus ecclesiasticis in hac

regione plura solent fieri haud consentanea, quae utrum vim

consuetudinis assecuta sint, vix audemus dicere. Vehemen-

ter commendandos censemus, qui universalis Ecclesiae dis-

ciplinam, a primo Concilio Baltimorensi valde commen-

datam, quatenus rerum adjuncta patiuntur, in omnibus

imitantur."

99. 3. By customs to the contrary. For, legitimate cus-.

toms have the force of laws; now, a prior law is abrogated

by a subsequent law of an opposite character. Hence also

previous customs may be abolished by subsequent customs

to the contrary.

MCfr. Craiss., n. 144. "Bouix, 1. c, p. 399-409.

"Cfr. Devoti, Prolegom., n. 50.&

Cfr. Bened. XIV., Instil. 60, n. 7.

87 Mor,Tract. 4, pars i., n. 42. "Bouix,

1. c., p. 409



CHAPTER VII.

ON NATIONAL CANON LAW.

ART. I.

Nature and Essential Conditions of National Canon Law.

100. National canon law (jus canonicum nationale) is de

fined: Thebody

of ecclesiastical lawspeculiar

to a na

tion.1

By national canon law we do not mean the peculiar

ecclesiastical laws of a country or nation which are merely

praeter jus commune, but those which are at variance with

it* (contra jus commune). Some authors, however, include

in the national canon law those laws also which are praeter

jus commune.*

101. National canon law may obtain in a country,

4

chiefly

in three ways: i. It may be national or exceptional from

the very beginning ;or it may become national, in that the

jus commune, having everywhere else undergone change,

remains unchanged in a particular nation/ 2. Again, the

ecclesiastical law governing a nation may be exceptional from

the very beginning in two ways : a, by virtue of simple

privilege, whereby the general lawgiver exempts a nation

from the universal law; b, or by virtue of some onerous con

tract." 3. Again, the privilege of exemption from the com

mon law may be acquired by a nation, either by the express

consent of the general superior or by custom having his

tacit consent.

Craiss, n. 146. * Boiiix, De Princip., p. 74. Craisson, Man., n. 148.

Mb., n. 146. *Bouix, 1. c, p. 74. Mb. Mb., p 75



52 On National Canon Law,

1 02. We ask : Can national canon law be considered

legitimate without the consent or authority of the Roman

Pontiff? All national canon law is more or less a de

rogation from the common law of the Church;hence it

cannot become lawful unless sanctioned8

by the Pope.

Afe say, by the Pope ;* for no other power, whether civil

or ecclesiastical, can dispense from or repeal in part the

universal law of the Church.1 &

Not the civil power, as

is evident;

nor an ecclesiastical power inferior to the

Pope, such as councils, whether oecumenical, national,

or provincial, for no council is oecumenical save when

approved by the Sovereign Pontiff. National councils,

far from being competent to alter or annul in part

i.e.,

in someparticular country

the

jus

commune of the

Church, are themselves bound to observe it;

this holds,

a fortiori, of provincial councils, bishops, and other ecclesi

asticalsuperiors."

103. For the rest, says Bouix, the Church, out of com

passion for the weak, often tolerates in different parts of

the Catholic world, customs which are opposed to hrr

general law.

1 &

104. Q. Can the Sovereign Pontiff annui all national

canon law ?

A. We reply in the affirmative. For, national canon law,

whether originating in custom,13

statutes, privileges, or con

cordats, depends upon the express or tacit sanction of the

Pope. Now, as it is in the power of the Pontiff to give his

consent, so also iswhe at liberty to withdraw it, and thus

abolish the"jus

canonicum nationale"

wherever it may

exist.

105. It may, however, be asked whether national canon

law, based upon concordats or solemn agreements between

Bouix, 1 . c . p. 75- Cfr. Craiss., n. 147.)0

Bouix, 1. c., p. 76."

Ib

Mb., p. 76, 77.13Cfr. Phillips, Kirchenr, vol. v., 206, p. 95.

MCfr. Bouix, 1. c., p. 77.



On National Canon Law. 53

the Holy See and civil governments, may be annulled by

the Pope. There can be no doubt that the Holy See is

bound, as a general rule, to observe these agreements.15 We

say, as a general rule ; for it is commonly held by canonists

that the Pontiff may recede from concordats when there are

just reasons for so&

doing. In fact, it is controverted whe

ther concordats are contracts proper or mere privileges.

Again, it seems to be commonly admitted that in all agree

ments entered into by the"

Sov. Pontiff this condition is

understood : Nisi aliud exigat causa gravis et extraordinaria

propter bonum commune ecclesiae.

ART. II.

Of American Canon La\v, or of the National Canon Law of the

United States.

106. Q. What is meant by American canon law ?

A.

Bythe national eccl. law of this

country

we under

stand the various derogations from the"jus commune," or

the different customs that exist among the churches in the

United States, and are sanctioned or tolerated by the Roman

Pontiff.18 We say,

"

are sanctioned or tolerated by the Roman

Pontiff"; for, as was seen, no national law can become legiti

mate except by at least the tacit or legal"

consent of the Pope.

Again,the

"jus particulare

"

of a nationalways

remains

subject to the authority of the Holy See in such manner as

to be repealableao

at any time by it. Hence, the jus nation-

tie, or the exceptional ecclesiastical laws prevalent in the

tt

Soglia, vol. i., p. 117.

MCfr. Bouix, 1. c., p. 78, seq. Cfr. S. Liguori, De Priv., 15.

"Craisson, n. 150.

"

Bouix, De Princip., p. 84. Cfr. Craisson, Man., n. 151.

*Clr. Craisson, Man., n. 151. Bouix, 1. c. f p. 8.



54 On National Canon Law.

United States, may be abolished at any time by the Sovereign

Pontiff.

fîP 107. Peculiar Features of our National Canon Law.

The o-eneral character of the national canon law of the UnitedO

States, as contained in the Plenary Councils of Baltimore

and in the decrees of the Provincial and Diocesan Synods

of this country, is that of a missionary country i.e., of a

country which is not yet converted to the faith. Now, in

missionary countries the disciplinary organization or regime

of dioceses is naturally imperfect and inchoative in the be

ginning, and only develops itself gradually, in proportion as

the faith spreads and the Church flourishes. As a rule, the

S. C. de P. F. at first appoints for such a country a priest in

the capacity of Praefectus Apostolicus. Afterwards, when the

diocesan organization is more advanced, it appoints a Vica-

rins Apostolicus, who is made a titular bishop, i.e., a bishop in

part. inf. Lastly, when the diocesan organization has pro

gressed farther, bishops with residentiary sees are appointed.

Still, even these bishops and their dioceses remain under

the sole direction of the S.

Congr.de

Prop.Fide, and retain

their missionary character until the diocesan regime becomes

perfected to such a degree as to be in full conformity with

the sacred canons.

108. The organization of parishes in missionary countries

progresses in a similar gradual manner. At first, there will

be simple missionaries travelling from place to place, and

gathering together small and scattered congregations whichwill be nothing but missions. As these missions or congre

gations grow and prosper, they assume the character of

quasi-parishes with fixed limits, and the missionary becomes

a resident rector or quasi-parocJnis, and should not be re

moved by the bishop without sufficient cause. Finally,

when the quasi parish has acquired a stable existence and

become possessed of sufficient income for the maintenance

of divine worship, whether in the form of pew-rents, collec-



On National Canon Law. 55

tions, etc., or of other sources, it is raised to the dignity of

a parish in the full and canonical sense of the term, and its

rector becomes a canonical parish priest proper. The de

crees of the respective Plenary, Provincial, and Diocesan

Synods regulating this peculiar condition of things consti

tute the national canon law of a

missionary country.When a diocese and its parishes have thus become proper

ty organized, it is transferred by the Pope from the control

of the Propaganda to that of the other respective Sacred

Congregations, especially of the bishops and regulars and of

the Council, and thus it ceases to be a missionary diocese

and falls under the general disciplinary law of the Church.

109. The missionary condition of the Church in the

United States is fast passing away, except so far as concerns

some few dioceses of the far West and extreme South. In

the greater portion of this country, magnificent churches,

capacious schools, and fine parochial houses have sprung

up on all sides. These parishes have, as a rule, an abundant

income in the shape of pew-rents and collections or dona

tions. It is indeed no exaggeration to say that our parishes

are, generally speaking, in a more flourishing condition than

in the Catholic countries of Europe. No wonder, then, that

our wise and glorious Pontiff, Leo XIII., happily reigning,

has. through the Third Plenary Council of Baltimore, caused

such laws to be made, especially respecting diocesan con-

suitors, the election of bishops, the appointment and re

moval of a number of rectors, as bring us nearer to the gen

eral discipline of the Church.



CHAPTER VIII.

ON PRIVILEGES (DE PRIVILEGIIS).

ART. I.

Nature, Division, etc., of Privileges.

1 10. A privilege is defined :

"

Privata lex aliquid speciale

concedens contra vel praeter jus."A privilege is, i, a law

(lex), not in the sense that those who receive a privilege are

also bound to make use of it, but because others are pro

hibited from placing any obstacles in the way of the use or

exercise ofprivileges."

2. A privilege is termed a private

law (lex privata), not in the sense that a favor is granted to

one person only, but because by privileges a special right or

favoris

bya

particularlaw

conferred,either

uponan indi

vidual or a community. This special right may be either

contra or praeter jus commune.3

111. Privileges being private laws are of force without

being solemnly promulgated. Hence, in order to cause

other parties to respect a privilege, it is sufficient to inform

them of it privately, either by showing them the rescript or

in some other manner.

4

H2. Privileges must be made known to ordinaries, I,

even when thi^ is not demanded by them, if the privilege

contains the clause"

certioratis locorum ordinariis"

;also

when there is question of publishing new indulgences ;2

t

Ferraris, V. Privilegium, art. i., n. i.

"Reiffenst.,

lib. v., Decretal, tit. xxxiii., n. 3. Edit. Paris, 1869.

"Suarez, De Leg., lib. viii. cap. i., n 3, 4.4

Craisson, Man., a. 157

56



On Privileges. 57

on demand of ordinaries those privileges must be exhibited

which relate to the exemptions of religious institutes, pro

vided these exemptions are not sufficiently known.

113. A privilege differs from a dispensation in this, that

the latter, being merely an exemption*

from the universal

law, or a suspension of it in a particular case, is not a law,

not even a"

lexprivata,"

*

and is therefore not necessarily

permanent.7 A privilege, moreover, is distinguished from a

mere permission (licentia);8

the latter being given only for

a few acts.

114. Division. Privileges are divided: i, into privileges"

contra jus"

v.g., exemption from the jurisdiction of the

ordinary,and into

privileges

"

praeteror ultra

jus

"

v.g.,the

"

power to absolve from reserved cases, to grant dispensations,

etc.; 2, privileges are real, personal, and mixed. A "

privile-

gium reale"

attaches proximately and immediately to a thing,

place, office, or dignity ;it passes to the successors in

"

office.

Kenrick gives an instance of a real privilege : Sic privile-

gium est reale, altaris cujusdam, quod indulgentia plenaria

applicabilis defunctis a cclebrante in eo impetretur.

1 *

A"

privilegium personale"

is one that is conferred directly upona certain person,

"

ratione sui"

i.e., in view of his merits;"

it is not transmissible if attached to an individual, but if at

tached to a moral person i.e., a community it continues14

in force, per se, so long as the community itself exists.

"

Privilegium mixtum"

is partly personal and partly real."

115. 3. Some privileges are contained in the body of

the canon law (privilegia in corpore juris clausa) ; others

Phillips, Lehrb., 92, p. 176.*Ib.

T

Craisson, 1. c., n. 159. Ib.

"St. Liguori, De Priv., n. i.

I

Ferraris, V. Privilegium, art. i., n. 3. Genuac, 1768

IIRciff.

,lib. v., tit. xxxiii., n. 12, 13. "Mor.

, Tract. 4, pars, i., n. 62.

11

Su.trez, DeLeg.,

lib. viii.,

cap.iii., n. 2.

Neapoli, 1872."

Bouix, De Jure Regular., torn, ii., p 75. Paris, 18^7.

*R"ifT.. 1. c.. n. u.



58 On 1y

rivileges.

are" conferred by special letters v.g., bulls, rescripts, in-

dults (privilegia extra corpus juris).

116. 4. A privilege is gratiosum when given, not in view

of any merits;n

remunerativum, when bestowed as a reward

or recompense ; cowuentionale, or purum, according as it is

based upon an agreement, or not so18

based.

117. 5. Privileges are perpetual if given without limit

of time i.e., for13

an indefinite period ; they are temporary

when bestowed for" a certain period v.g., ten years.

uS. 6. Privileges are per se and ad instar. Privilegia

ad instar are21

those which are granted on the model of

other privileges.

119. 7. Privileges are named communia when they are

bestowed upon communities ; privata, when given to indi

viduals. A person may renounce his own23

private privi

lege, but he cannot give up a privilege pertaining to a

community of which he is a member. Thus a clergyman is

not at liberty to23

disclaim the benefit of clergy (privilegium

fori) where it is in force."

1 20. 8. Privileges are usually granted by the Pope in

writing (litteris) ;sometimes also orally (privilegia vivae

vocis oraculo concessa). 9. Again, the Pope bestows privi

leges either motu proprio"

or ad instantiam.

121. Q. Who can bestow privileges?

A. Only those who have the power to enacta>

laws.

Hence, the Pope alone may everywhere concede privileges

contra jus. Bishops may confer privileges, by which exemp

tion is granted from"

statutes made by themselves or their

predecessors.

"

Ferraris, V. Privileg., art.i.,

n. 4."


18Ib.

"

Reiflf., lib. iv., tit. xxxiii.. n. 18.M


11Reiff., 1. c., n. 20.

MBouix, De Jur. Regular., torn, ii., p. 75.

"

Cfr. Blackstone, bk. iv,ch. 28.

84

Cfr. Kenrick. tract iv., pars, i., n. 65.

**

Phillips, 1. c.-

Craisson, 1. c., n. 161.*

Reiff.. 1. c., n. 6.



OnPrivileges, 59

122. Privileges are acquired, i, by concession of the

proper superior;2 &

2, by lawful custom when there is ques

tion of a community ; by prescription in the case of private

persons ;

"

3, among regulars, by communication."

123. As a rule, privileges, though not containing a de

rogatory clause, may nevertheless derogate from the com.

mon law of the Church ;

31

but when the)7 are to restrict the

jurisdiction of the ordinary, the parties interested should be

heard in their own 32

behalf, except where the Pope directs

otherwise.

124. Privileges, in order to be valid, need not, ordinarily

speaking, be given in writing

125. Does a privilege properly conceded take effect as

soon as it is conferred, or only when it comes to the

knowledge of the privileged person ? The question is de

bated. The more probable opinion appears to be that

which thus distinguishes :

34

If the privilege is bestowed

motu proprio, and not at the request of the privileged party,

it does not usually take effect before it has been brought to

the notice of, and accepted by, the privileged person.30

If,

however, it is conceded at the solicitation of the privileged

party (ad preces privilegiati), it takes effect immediately upon

being granted.36

Hence, where the Tridentine decree

Tametsi obtains, a priest having written to the bishop or

parish priest for37

permission to bless a marriage can assist

validly8 &

at the marriage, even before receiving an answer,

providedthe

permissionwas

38

really givenbefore the cere

mony took place. The same holds true of all cases where

dispensations or other faculties are asked from the bishop.

**Reiff., lib. v. tit. xxxiii.. n. 38.

MCraiss., n. 161.

10

Suarez, De Leg., lib. viii., cap. vii., n. 4, 5. "St. Liguori, De Priv., n. 2.

**Craiss

,n. 162.

33

Ib., n. 163.S4

Bouix, De Jure Regular., vol. ii., p. 76M

Cfr. Reiff., 1. c., n. 42-46.*

Ib., n. 46-48.37

Ib., n. 48.**

We say validly ; for he cannot do so tawfullv except for sufficient reasons

(Cfr. Reiff., 1. c., n. 48.)MBouix, 1. c., p. 76.





On Privileges. 6 i

io a place, dignity, or state, such as privileges of bishops and

regulars ;in these and several other cases, privileged per

sons cannot renounce their47

privileges.

128. Q. How are privileges to be explained?

A. We must distinguish between extensive and com

prehensive interpretation. The former is that by which

the meaning of a law is extended to other cases and

persons, beyond the wording of the law, and at the same

time beyond, though not against, the intention of the law

giver. The latter is that by which the meaning of a law

is extended beyond its words, but not beyond the inten

tion of the lawgiver.4

Again, privileges may be inter

preted by the law-maker himself (interpretatio auctoritativa,

definitiva) or by private doctors4

(interpretatio doctri-

nalis).

Having premised this, we now answer : Privileges, which

are "contra jus commune," and prejudicial to other par

ties,60

must be strictly construed; except, however, i, when

they are in the Corpus juris ; 2, or given" motu proprio

"

; or

3, bestowed upon religious communities."

129. Q. How do privileges lapse?

A. \. By revocation (revocatione). The Sovereign Pon

tiff can, where the good of religion so requires, revoke privi

leges. The Council of Trent revoked many privileges

their" number having become too great. Privileges may be

validly revoked63

even without any cause;but when they

were conceded as arecompense, or have the force of"

contract, a just cause is required. Revocation may be expressor tacit. Express revocation is either special or general.

General revocation is subdivided5:

into ordinary and extra

ordinary. 2. The Pope is especially free to revoke privi

leges when they are granted conditionally i.e., subject to

4T

Craiss., n 166. Bouix. 1. c,

p.78.

4*

Reiff., 1 c., n.

95, 96.MFerraris;, V. Privile^., art. ii

,n. 27.

"

Phil ips, Lehrb., 92, p. 177.H

Ib.M

Craisson, Man., n. 69.4

Rciff., lib v., tit. xxxiii., n. 12**Bouix, De Jur. Regular., vol. ;

L, p. 80



62 On Privileges.

revocation. Privileges thus conditioned lapse at the de ith

of theL &

grantor, when they are given"

usque ad beneplaci-

turn nostrum"

;but they continue to be of force even after

the death of the grantor, if they are bestowed"

usque ad

apostolicae sedis51

beneplacitum,"or with the words,

"

donee

revocavoro." 3. Personal privileges lapse with the death of

1 he person" privileged. 4. Privileges may also lapse, by

being expressly orM

tacitly given up or renounced (renun-

tiatione). 5. Privileges are lost, and that sometimes ipsc

facto, by60

being abused. Clerics, for instance, living like

laymen, are deprived of the benefit ofclergy."

"

Phillips, J. c."

Ib., p. 177-"

Ib.

"

Ib., 1. r.,p. 177.

MIb.

"

Reiff, 1. c., n. i76-lo.



CHAPTER IX.

ON THE HISTORY OF THE COMMON CANON LAW;OR ON

THE HISTORY OF THE CANON LAW OF THE ENTIRE

CHURCH.

ART. 1.

Of Collections of Canons in General (De Collectionibus Canonum

in Geuere.)

130. Down to the second, and perhaps third, centuries of

the Church, the Sacred Scriptures and the"

Rules laid down

by theApostles,"

or apostolic men, constituted the law of

the Church in the East as well as in the West.

131. Later on, however, numerous canons were framed

by councils. The canons of councils and the decrees of

Sovereign Pontiffs were at various times collected into one

code1and arranged in a methodic manner. These codes

were named Collectiones Canonum. The history3

of canon

law, therefore, may4

be appropriately called"

History of the

Collections of the Sacred Canons," or also"

History of the

Sources6

of Canon Law."

132. In order to form a correct idea of the canons of the

Church, it is necessary to know the nature&

both of the dif

ferent collections and of the canons themselves. We shall

therefore say a few words on each.

1

Bouix. De Princip., p. 425.&


1Cfr. Devoti, Prolegom., cap. iv., 51. "Leodii, 1860.

4

Walter, Lehrb., 61. Phillips, vol. iv., 167.*Salzano, Diritto Can., vol. i., p. sq.

63



64 On the History of the

133. I. Character of the various Collections. The great

utility of these collections consisted in this, that the canons

which were scattered through many volumes were grouped

together and exhibited to the view of the student at a

glance. Moreover, these collections, when made by public

authority, served" to distinguish the genuine from the

spuriouscanons.

Afew observations in

regardto these

collections in general will suffice.

I34 . K i n matters of faith there must be unity through

out the whole Church. For, as Tertuliian says :

"

Regula

fidei una omnino est, sola, immobilis, et irreformabilis."

But. in matters of discipline,9

different practices may lawfully

exist in the various parts of the Church ;in other words,

national canon law may lawfully obtain among the different

nations of Christendom. Hence,&

some churches v.g., the

Oriental, the African, the Spanish had their collections,

which contained not only the canons of the universal

Church, but also those of the respective particular church.

135. 2. The mere placing together of canons in one col

lection"

adds, of itself, no weight to the canons themselves.

Hence, canons compiled in a code by private authority have

no other authority than what they would have"

out of the

collection. If canons, therefore, are to have any authority

ratione collectionis," the collection itself must be made, or

at least approved, by public authority. Collections, there

fore, of canons when made or received by the authority of

the Holy See or oecumenical councils, are binding on all

the faithful;but when made by authority of the bishops of a

n;,tion or country, on the faithful only of such country.

^6. 3. Finally, canons or collections are apocryphal or

supposititiousM when not ascribed to the proper author or

^ h -n interpolated or altogether spurious.

Soglia, vol. i., p- 36.&

Salzano, 1. c.. p. 58. 59. Ap. Soglia, I. c., p. "6

1(1

Tb.

"

Ib., p. 87

w

Salzano,I.

c., p. 59.11

Soglia, 1 c. Ib.



Common Canon Law. 65

137. II. Nature of the Canons themselves. As the sub

ject-matter of canon law is threefold, namely, faith, morals,

and discipline, so there are three kinds of canons : i, canones

fidei or canones dogmatic ; 2, canones morum; 3, canones

disciplinae.1

1 33,._i. Canones dogmatici are those "in quibus aliquid

credendum proponitur." Two things are required to con

stitute a dogmatic canon : I, that the truth enunciated in the

canon be revealed; 2, that it be proposed1 &

by the Church.

As to the marks by which canons are known to be dogmatic,

see Soglia.17

3Q. 2. Canones morum relate to those things"

quae in

humanis actibus, propter se, honesta sunt vel turpia, adeoque

vel agenda vel omittenda."I

Many canons of this kind are

found in the Decretum Gratiani v.g., in regard to contracts,

oaths, adulteries, thefts, usuries, and the like. As these

canons either enjoin what is intrinsically good, orprohibit"

what is intrinsically evil, they can never be abrogated.

140. 3. Canones disciplinares are those"

qui feruntur ad

puritatem fidei,honestatem

morum, divinique

cultus sancti-

tatem tuendam." To this class belong those canons: i,

which decree censures and other ecclesiastical penalties

against heretics, adulterers, etc.; 2, or lay down the precept

of paschal communion ; 3, or also regulate the appointment

to ecclesiastical offices; 4, or regard the administration 01

the sacraments,, sacred rites, and the like.21 We observe

here that although canons may be, according to Cardinal

Soglia, divided into three kinds, as was just seen, they are

nevertheless more usually divided into two k nds only,

namely, into dogmatic and disciplinary."

"

Soglia, 1. c., p 13 8.ie

Ib. 9, p. 16.

&

Ib., p. 10.

Ib., vol. i., p. 19.

"

Ib., P. 20, 12. "Ib., 13. P- 20.

Ib. p. 21 "Ib., p. 15 &8.




ART. II.

Of the State of Canon Law in the Oriental Church Eastern

Collections.

141. The chief collections of canons of the Eastern

Church are :

I. The celebrated and very ancient Collection referred to in

the Council of Chalcedon (451). In actione 4*2 and \\a of this

Council, we read that certain canons were read, by order of

the Council,24

out of a code or book of canons. There is no

doubt, therefore, that a collection existed at the time;

its

compiler, however, is

entirely

unknown. It contained 166

canons, enactedrespectively" by the Councils of Nice,

Ancyra, Neo-Caesarea, Gangra, Antioch, Laodicea, and

Constantinople. PhillipsMholds that this collection had no

official character and was not recognized by the Council of

Chalcedon as having authority in the entire Church. Sal-

zano," however, maintains that, although the collection

comprised the canons of the Eastern Church only, it wasnevertheless approved by the entire Church in the Council

of Chalcedon.

I42 - II- The Collection of John, surnamed Scliolasticus.

This author added to the above collection the canons of the

Apostles, of the Councils of Sardica, Ephesus, Chalcedon,also 68 canons taken from the Epistles of St. Basil." The

collection is divided into fifty titles, treating first of bishops,then of priests, deacons, etc. After John was made Patri

arch of Constantinople (A.D. 564) he compiled"

another col

lection, in which were grouped together not only the canons

wSoglia, vol. i., p. 92.

S4Cfr. Bouix, De Princip., p. 415, 416.

18

Soglia, 1. c., p. 93.M

Kirchenr., vol. iv., 169, p. 20. Ratisbon. 1851"

Diritto Can., vol. i., p. 61 o?. Soglia, 1. c., p. 93.19

Bouix, De Princip., p. 420, H ;i.




of the Church, but also the laws of the empire which had

any relation to the laws of the Church;this collection was

consequently termed Norno-Canon.

143. III. Collection of Phot his, Pseudo-Patriarch of Con

stantinople- -Fhotius compiled his Nomo-Canon in 858, and

divided it31

into fourteen titles. It contains the seeds of

the Greek schism.

144. IV. Commentaries on the Greek" code were writ

ten by the monk Zonaras in 1120, and by Theodore" Balsa-

mon in 1 1 70.

145. V. Synopses or Abridgments of the code were made

by Simeon, the master and logothete, by Aristenus, Arsenius

(1255), Harmenopulus (1350), and others.34

146. VI. State of Cation Law in the Greek and Russian

Church at the present day. The collection of Photius, the

commentaries of Zonaras and Balsamon, and, finally, the

latest enactments of the various patriarchs, constitute,85

so to

say, the body of laws by which the Greek Church is gov

erned at present. The Russian Church is, at present, ruled

chiefly bythe decrees of the so-called

"Holy Synod"

*

a permanent senate instituted by Peter the Great in 1721.

ART. Ill

History of Canon Law in the Latin Church Collections of

Dionysius Exigmis, of Isidore Mercator, of Gratian, etc.

147. The collection or code of canons of the Councils of

Nice and Sardica,37

which had been translated into Latin,

was for a long time i.e., down to the sixth century the

only collectionpublicly"

received in the Western or Latin

"

Salzano, 1. c., p. 64."

Bouix, De Prin., p. 422."


"

Walter, Lehrb., $ 73, p. 125.& 4

Ib., 74. Cfr. Salzanu, vol. i., p. 64.

** Tb&

Ib. r Devoti, Prolegom., n. 57.

"

Bouix, De Princip., p. 426.



68 On the History oj the

Church. It is true that already prior to the sixth centurythere were Latin translations of the entire Greek code or

collection of canons, namely, the Isidoran and the Prisca."

But neither obtained public authority before the period in

nuestion.40

148. The chief collections of .he Latin Church are the

following

:

I. Collection of Dionysius Exiguus in the Sixth Century.Devoti

41

says of Dionysius:"

Fuit hie Dionysius instituto

monachus, natione Scytha, moribus et domicilio Romanus,doctrina vero et vitae integritate praeclarus." He came to

Rome after the death of Pope Gelasius (f 496) and died in

536"or

540."It is matter of controversy whether any code

Df canons of the Latin Church existed previous to the Diony-sian collection.

44

149. The collection of Dionysius is divided into two

parts : one contains the canons of councils;the other, the

epistles of the Roman Pontiffs.46

The first part embracesthe canons of the Apostles, the canons of the Councils of

Nice, Ancyra, Neo-Caesarea, Gangra, Antioch, Laodicea,

Constantinople, Chalcedon, and of the Councils of Africa;

"

the second, the decretal epistles of the Sovereign Pontiffs

from Siricius to Anastasius II.47

150. This collection attained to great influence throughout almost the entire Church, though it had no public au

thority or official character. It was afterwards, however,4*

to a certain extent, approved by the Apostolic See, as welearn from the fact that Pope Adrian I. presented it, withsome additions, to

Charlemagne, in order that it mightserve as the code of laws for the churches of the

empire."

"

Devoti, 1. c., n. 58. Cfr. Bouix, 1. c., p. 431. L. c., n. 59.49

Phillips, vol. iv., p. 35. Darras, vol. ii., p. 138.44

Soglia, vol. i., p. 95."

Craiss., n. 176.4)1

Bouix, 1. c., p. 436.Devoti,

1. c., n. 60.

-Ib., n. 61.48




Common Canon Law.69

151. Other collections of less note are : I, Collection of

St. Martin, Archbishop of Braca, who died in 583; 2, Bre-

viatio or indiculum of canons by Ferrandus, deacon of Car

thage (ann. 547) ; 3, Breviarium or collection of Cresco-

nius, an African bishop, who flourished in 697.

152.II.

Collection of Isidore Mercator in the Ninth Century. On this head we merely sum up the arguments givenin our "

Notes." i. This collection was regarded as genuine by all canonists and theologians for seven hundred years

that is, from the ninth to the fifteenth century.51

2. The

celebrated Cardinal Nicholas of Cusa, usually called Card.

Cusanus (f 1464), was the first who questioned its authenticity.

That the Isidoran collection is spurious,52

at least in part,

there can be no doubt at the present day.53

3. France is as

signed as the place whence probably it was issued;

it came

into use between the years 829 and 857. 4. It wrought no

material change in the discipline of the Church;"4

for even

those documents which are spurious only reflected such doc

trines as were universally believed at that period.65

153. Collections of less importance" are: I, Collection oi

Regino in 906 ; 2, collection of Burchard, Bishop of Worms,which appeared between the years 1012 and 1023; 3, collec

tion of Anselm of Lucca (f 1086); 4, of Cardinal Deus-

dedit, which was dedicated to Pope Victor III. (1086-1087) ;

5, of Yvo of Chartres (f 1117); 6, Liber Diurnus, which is

thus described by Bouix :

&

" Romani Diurni nomine appel-

latur codex in quo, praeter formulas scribendi, continentuj

insupcr ordinationes Summi Pontificis, professiones fidei

privilegia, praecepta," etc. This Liber Diurnas was probablj

compiled soon after the year 714, and served as a chanoenf

book."

*

Soglia, vol. i., p. 31-38.M

Ib., p. 97."

Ciaiss., n. 177.

11

Devoti, Proleg., n. 68. M Phillips, vol. iv., p. 87, 88**Bouix, De Princip., p. 456, 457.

**

Phillips, 1. c., p. 128-132.H L c., p. 464.

*

Walter, p. 183. Bonn, 1839.




154. III. Collection of Gratian in 1151. Gratia a was

born at Chiusi, in Tuscany, and became a Benedictine monk

at" Bologna, where, in the year 1151, he issued his cele

brated work, now commonly known as the Decretum Gra-

tiani. It is not simply a collection, but a scientific and

practical treatise on canon law." The chief object of the

work seems to have been to explain and reconcile the

various seemingly contradictory canons as they existed in

the collections of that period.81

155. The Decretum is made up of texts from the Sacred

Scriptures, of fiftycanons of the Apostles, of canons of coun

cils, of constitutions of Roman" pontiffs, etc. It is divided

into three parts :

& 3 The first treats of ecclesiastical persons

and offices, and consists of 101 distinctioncs, which are divided

into chapters or canons; the second, of ecclesiastical judi

cature, and is composed of 36 causae, each of which is

divided into qitacstiones, which in turn are subdivided into

canons or chapters; the third, of the liturgy of the Church,

and is made up of five distinctiones. More than a hundred

canons are named Paleae, a title probably derived from the

name Panea Palca, who was a disciple of Gratian, and is

supposed to have inserted these Paleae into the Dccrctum"

156. Gratian s collection obtained great authority and

superseded all other collections; yet it remained a private

compilation, was never clothed with an official character,

or approved by the Holy See.6

Mistakes abound in it, the

author

drawingon and

copying

from the collections then

extant and containing inaccuracies,06

Corrections of the

Decretum were made by order of Popes Pius \ . and Gre

gory XIII.

Minor collections of this period are: That of Cardinal1

Devoti, 1. c., n. 73.60

Walter, 1. c., p. 193.

61

Phillips, 1. c., p. 142.

*Craiss., n. 184.

& 3Cfr. Phillips, 1. c., p. 152-154. Cfr. Devoti, 1. c., n. 74

*Phillips, 1. c., p. 161. 66 Devoti, Prolegom., n. 79.

"

Phillips, 1. c , p. 1497

Ib. P 174.



Canon Law. 7 1

Laborans (1182) ;Collectio Prima, by Bernard of Pavia," in

1 190 ;Collectio Secunda, by Gilbert/* an English writer

(1203); Collectio Tertia, Quarta, and Quinta.

157. IV. Collection of Decretals under Gregory IX. Pope

Gregory IX. ordered a code to be published, in which the

corpus of the entire ecclesiastical law should be suitably

arranged. Whatever was71

useless and confused or ambiguous was to be retrenched or corrected. The accomplishment

of this task was entrusted to St. Raymond of Pennafort, who

began the work in 1230 and finished it in the year 1233."

158- The whole work is divided into five books. The

first treats of ecclesiastical judicature or of prelates ;the

second, of civil lawsuits;the third, of ecclesiastical matters

brought before the episcopal forum, in causis civilibus;the

fourth, of betrothals and marriages ;the fifth, of judicial pro

ceedings in criminal matters, of censures and the like. This

collection is authentic, and has the force of law in every"

particular ;the same holds of the Liber Scxtus, the Clemen-

tinae, the Extravagantcs, both communes and of John XXII."

159. Of the othei collections of decretals, we may men

tion : i. The Liber Scxtus, or Sextus Decretalium, which

was published in 1298 under the auspices of Pope Boniface

VIII. 2. The Clementinoe?* or collection of decretals by PopeClement V. (1305-1314). 3. The Extravagantcs of John

XXII. (1316-1334), and the Extravagantes communes. 4.

The Bullary of Benedict XIV., which contains the constitu

tions of that

Popeand is of

public authority. 5.

The Bulla-

riwn magnum Romanum" This collection or code, made up

originally of fourteen volumes, the last of which was pub-

88

Phillips, 1 c., p. 211."

Ib., p. 223. "Craies.,n. 18571

Bouix, De Princip., p. 484.

n The Collection begins with the decretals of Alexander III., thus

forming a continuation of Gratian s work, which was only carried clown to thai

period. (Cfr. Darras, vol. iii., p. 360.) Bouix. De Princip., p. 485, 406.

T4Craiss.,n. i%, 187. Phillips, vol. iv., p. 3^6.

7fl

Ib.. p. 387.77

Ib.,p.485.



72On the History of the

lished m 1744, has of late been continued in Rome (1839)

Bouix"

says of it :

" Valde imperfecta est, et majori adhuc

negligent ia hodie Romae continuatur." It is merely a pri-

vate collection, and therefore has no authority as a collec

tion quatenus collcctio.

160. V. Corpus Juris Canonici ; its component par s and

authorityat

the present day. The term corpus, when usedin

reference to laws, ecclesiastical as well as civil, means a collec

tion of laws that forms, so to say, a whole.79 At present the

Corpus Juris Canonici consists of, I, the" Decretum Gra-

tiani," to which are annexed the Penitential canons and the

canons of the Apostles ; 2, the five books of the decretals of

Gregory IX.; 3, the Liber Sextus of Boniface VIII.; 4, the

Constitutiones Clementinae ; 5, the Extravagantes of JohnXXII.

; 6, the Extravagantes Communes."

His sexpartibus,"

says Bouix,80

"

expletur et clauditur Corpus Juris Canonici."

161. Authority of the Corpus Juris Canonici at the present

day. We cannot do better than give the words of Bouix8I

on this point :

" Codicem autem ilium juris canonici dictum,

prae manibus habeat, perpetuoque, nustris cliam temporibus

evolvat necesse est, quisquis in jurisprudentia canonica,

non vult penitus caecutire. Licet enim multa immutaverint

turn Concilium Tridentinum, turn novae Constitutiones Pon-

tificiae, innumcra tamen immota prout in Corpore Juris Ca

nonici extant remansere."

162. Q. What are the chief matters to which the Corpus

juris canonici applies at the present day ?

A. i. The Corpus still has the force of law in matters

relating to the ecclesiastical judicature, to divine worship

ecclesiastical" doctrine, and discipline. 2. It is, moreover

the code used at present in the schools oflearning"

3

and in

the ecclesiastical forum. 3. Besides, canonists have for

1

Phillips, 1. c.. p. 489.7*

L. c., p. 403, 404.*

L. c., p. 489.

Ib., p. 490. Ib., vol. iv. , p. 412."

Devoti, Prol., p. 19




many centuries taken their arguments, to a great extent,

from the Corpus Juris ; these arguments, therefore, can be

understood fully only by thoseMwho are familiar with the

Corpits itself.

163. VI. The Jus Novissimum. Speaking in general, the

Jus Novissimum consists of laws published from the time the

Corpus Juris Canonici^ was closed i.e., since the extrava-

gantes were inserted down to the present day.

164. This Jus, speaking in particular, is principally made

up of these parts : I . The constitutions or decretals of the Roman

Pontiffs. No authentic collection has been made of the vari

ous constitutions or lawsc6 made by the Roman Pontiffs since

the close of

Corpus Juris.

Theonly exception

in this

respectis the Bullary of Benedict XIV., which is of public authority.

Of the various private collections that are extant, the Bulla-

rium Magnum Romanum, which, however, is replete with

errors, holds the foremost rank. 2. The regulations by

which the Apostolic chancery is governed (regulae cancel-

lariae Romanae]. 3. The decisions of the congregations or

committees of cardinals. 4. The decrees of the Council ofTrent, which, in fact, form the chief portion of the Jus

Novissimum.* 5. Finally, the decrees of the Council of the

Vatican.88

84

Bouix, 1. c., p. 490.&

Ib.. p. 495.8B

Ib., p. 496."

Ib.

"

Proposals were made at the Council of the Vatican by a number of

bishops to have a committee appointed, consisting of the most eminent

canonists, who should revise the Corpus Juris Canonici, or rather prepare a

new one, omitting whatever, owing to our changed times, was no longer

applicable, and report the result of their labors to the Vatican Council or the

next oecumenical council. (Martin, Aibeiten, p. 106;

id.. Doc., p. ii. sect, ii t

<, 3. 4 5, >4.)



CHAPTER X.

HISTORY OF PARTICULAR OR NATIONAL CANON LAW HIS-

TORY OF CANON LAW IN THE UNITED STATES.

165. So far, we have discoursed on the history of the

canon law of the entire Church, or of the common canon

law. We now come to the historical phase of canon law in

the United States.

1 66. Decrees of provincial and national councils form

one of the sources of our national canon law. The first

council, or rather diocesan synod, ever held in the United

States was that of Baltimore in 1791. Its acts and decrees

were republished by order of the First Provincial Council

of Baltimore, and are therefore authentic as a collection.

The First Provincial Council of Baltimore was held in

1829,

the second in 1 833, the third in 1837, the fourth in

1840, the fifth in 1843, the sixth in 1846, the seventh in 1849.

To these councils all the bishops of the United States were

called ;in this respect, therefore, they might be styled na

tional or plenary councils. They are, however, usually, and

correctly so, named provincial councils, since but one eccle

siastical province existed at the time, and they were con

vened by the metropolitanas

suchbut not

bya

Papal

delegate.

167. By Apostolic briefs of July 19, 1850, the Sees of Nev

Orleans, Cincinnati, and New York were raised to the dig

nity of metropolitan churches. St. Louis had been erected

into an Archiepiscopal See, July 20, 1847, though suffragans

1

Cone. Prov. Bait., p. 5, 6. Bait., 1842.

*

Ib., p. 29.

*Ib-( p. 57, 9i, 92.



History of Particular or National Canon Law. 75

were assigned it only in 1850. The United States were

thus divided into six ecclesiastical provinces, including*

the

Province of Oregon, erected July 12, 1846.

168. The First National Council of the United States was

held at Baltimore in 1852 under the*

presidency, of Arch

bishop Kenrick, as Papal delegate. Six archbishops and

twenty-six bishops took part in its deliberations. The Pro

paganda,8

by letters of September 26, 1852, approved its

decrees. The Second National or Plenary Council of Balti-

nore met in 1866, and was presided over by Archbishop

Spalding, as Papal delegate. Its decrees were 7

revised

by letters of the Propaganda, dated January 24, 1868.

fîP169. The TJiird Plenary Council of Baltimore, which

is perhaps the most important of all our councils, was sol

emnly opened on the 9th of November, 1884, and closed

December 7th of the same year. It was attended by four

teen archbishops and sixty-two bishops or their procurators.

It was revised by decree of the S. C. de Prop. Fide, dated

Sept. 21, 1885, and was promulgated by His Eminence

Card. Gibbons, Archbishopof Baltimore and

Apostolic

Delegate, on the Feast of the Epiphany, 1886. Its decrees

became obligatory all over the United States, on and from

the day of this promulgation.8

170. Q. What is meant by the confirmation of councils

in forma communi and in forma specifica?

A. i. Suarez affirms confirmation in forma communi

*o be that which is given"

cum sola cognitione confusa

privilegii [or, as the case may be, councils] sine distinctl

iori

notitia illius." Benedict XIV.10

says :

"

In forma comrnuni

confirmari dicuntur statuta, quae non singulatim examinan-

tur, neque approbantur a Pontifice motu proprio, et ex certa

scientia."

2. Confirmatio in forma specifica is that "quaefit cum

perfecta notitia totius negotii, et omniumll

ejus circumstan-

4Cath Ch. in U. S., pp. 195, 196.

8

Ap. Coll. Lac., torn, iii., p. 130 seq.

Ib., p. 151. Cone. PL Bait, ii., p. 136.

8 See Cone. PI. Bah 111., pp. xiii, xiv, and p. 184.

De Leg., lib. viiu. cap xviii.. n. 5. Neapoli, 1872. Cfr. Reiff., lib. u., tit. 30,

0.7. De Svn. Dioec.. lib. xiii., cap. v,n. n. "Reiff.. I.e.



76 History of Particular or

tiarum." Benedict XIV. explains this more explicitly:11

"

In forma specifica fieri (confirmatio) dicitur, cui praemit-

titur causae cognitio, et singula statuta diligenter expendun-

tur, ac deinde, nulla adjecta conditione, auctoritate Apos-

tolica cum clausula motu proprio, atque ex certa scientia,

confirmatur."

171. Q. How can it be known that a provincial or na

tional council is approved in forma specifica and not merely

in forma communi ?

A. i. When the tenor or contents of its decrees are

inserted in the instrument of confirmation.13

2. When, in

the absence of the above, these phrases are used : ex ccrta

scientia; proprio motu;" ex plcnitudine potcst tis ; non ob-

stantelb

legs

aut consuetudine in contrarium, or snpplentes omncs

juris et facti defectus. 3. The rccognitio by the Sacred

Congregation is not sufficient ;the confirmation must be

given by letters Apostolic.1 1

172. In case of doubt whether a council is approved in

forma specifica or only in forma communi, canonists com-

mon y hold that it is approved merely in forma communi.

i? 3- Q- Can bishopsin

particular cases relaxin their

dioceses the decrees of provincial or national councils ?

A. i. They cannot, in case these councils are confirmed

in forma specifica; for, as Benedict XIV.,18

quoting from

Fagnanus, says :

"

Statuto confirmato in forma specifica, cum

-âiuram induerit Icgis Pontificiae, nulli inferiorum fas est dero-

gare."2. They may do

&

so if these councils are approved

only in forma communi, excepting/ however, in those cases

where such councils reserve to themselves the2

power to

fiispense in their decrees.

& De Syn. Dioec., 1. c."

Suarez, DC Leg., lib. viii., cap. xviii., n. 5.

*4Ib., n. 6.

"

Bened. XIV., DC Syn., lib. xiii., cap. v., n. 11.

**ReifF, lib. ii.,tit. 30, n. 8.

"

Bouix, DC Episc., vol. ii., p. 394.

L. c., n. n."

Ib.*

Supra, n. 74.

*

Kenrick, Mor., Tract 4. pars, i., n. 40.



National Canon Law, 77

174. Q. Is the Second Plenary Council of Baltimore ap

proved in forma specifica ?

A. i. It is not; for the Decretum of the Propaganda,

dated January 24, 1868, Pro Rccognitione Concilii (PI. Bait.II.),

has none of the marks above given of the confirmatio informa

specifica. This appears from the decree itself, which reads :

"

Eadcm S. Congr., ejusdem Concilii (PI. Bait. II.) acta et

decreta, diligenti inqui-sitione adhibita, expendit, paucisque

exceptis correctionibus et animadversionibus, eadem ut ab

omnibus ad quos spectant, inviolabiliter observentur, liben-

tissime recognovit."

"

2. Moreover, the sole revision and approbation of de

crees by a Sacred Congregation is not Papal confirmation,

at least in forma specifica. For decrees of councils are

sanctioned in forma specifica, not by a" Decretum S.

Congr." pro recognitione concilii," but by apostolic letters or

briefs." Now, the decrees of Baltimore were confirmed, or

rather reviewed, not by apostolic letters, but by the" De

cretum S. C. de Prop. Fide" above mentioned, as appears

clearly from the Holy Father s reply to the fathers of Balti

more, September 2, 1867: "Quod attinet ad Acta Concilii

(PI. Bait. II.) congruum de eisdem Actis, a nostra CongrFidei Prop., praeposita, accipietis responsum."

"

175. From what has been said we infer that it is allowed

to appeal to the S. C. de Prop. Fide from the decrees of the

Second Plenary Council of Baltimore, and also from the de

crees of the Third Plenary Council of Baltimore, held in 1884;

for, the confirmatio1

in forma comimnii does not remove the

defectus juris that may be contained in their enactments."

It

MAp. Cone. PI. Bait. II., p. cxxxvi

53Bouix, De Episc., vol. ii., pp. 394, 395. Paris, 1873

"Cfr. Cone. PI. Bait. II., p. cxxxvi.

45 Cfr. Bened. XIV., De Syn. Dloec., lib. xiii.. cap. iii., n. 4.

28 Ap. Cone. PI. Bait., p. cxxxv. 41 Cfr. Bouix, 1. c., p. 395.*8

Craisson, Man,n. 87.



78 History of Particular or National Cation Law.

may be objected that it can scarcely happen that a defective

decree be enacted by a provincial or national council and

yet be returned" by the S. Congr. without having been

corrected. This we cheerfully admit. Yet the case is not

impossible, as Bouix shows.30

176. It must be observed here that the confirmatio in

forma specifica merelyadds

authorityto the decrees of

provincial or national councils but does not, except when these

decrees are inserted in the Corpus Juris Communis, extend

their binding force beyond the respective province or nation,

nor upon the entire Church.1

"

Bouix, 1. c., p. 395, 396.

80 A careful study of the subject would seem to shw that the Second

Plenary Council of Baltimore was not confirmed by the Holy See in any form,

not even infor>na couimuiii, but merely revised and corrected. Thus, the

decree of the Propaganda (C. PI. Bait. II., p. cxxxvi.) has for its heading the

words :

" Decrctum pro Rccogniiionc Concilii"

;but not

" Decretum pro

approbatlonc or confirmati ne Concilii." Nor did the Fathers of the council

ask for a confirmation; they simply complied with the prescription of Pope

Sixtus V., and sent the"

Acts and Decrees"

to the Holy See, not for the sake

of having them confirmed, but merely revised and corrected (C. PI. Bait. II..

p. cxxxii.) In fart, to use the words of the Roman Consultor who examined

our work," The Holy See does not, as a rule, confirm any national or provin

cial council, but simply revises its acts, and, if need be, prescribes certain

corrections. Sometimes, however, in those places or missionary countries

where the common law of the Church does not fully obtain, there being need

of some law, the Holy See confirms such councils. Thus it confirmed the

four provincial councils of England, the First Plenary of Ireland (Synod of

Thurles), and the First Plenary of Ba timore. But the Second Plenary of

Baltimore, as also the Second Plenary of Ireland (Synod of Maynooth), wasnot confirmed by the Holy See, but, having been corrected by the S. C. de

Prop. Fide, simply revised and ordered to be promulgated."

31 Bened. XIV., De Syn., lib. xiii., cap. 3, n. 5. The Third Plenary Council

of Baltimore, held in 1884, like the Second, was not approved, but merely re

vised by the Holy See. (See Decretum S. C. de P. F. 21 Sept. 1885, in C. PI.

Bait III., p. xvi.)



CHAPTER XL

RULES FOR THE INTERPRETATION OF LAWS.

177. I. Ex parte causae efficient is, there are four sorts of

interpretations: i, interpretatio principis, or that which is

given by the lawgiver himself; 2, that which is established

by lawful customs (interpretatio usualis) ; 3, or given by

judges (interpret itio judicis) ; 4, or by learned men (interpre

tatio doctrinalis].The explanation of laws, as made by the

lawgiver i.e., by the Pope, oecumenical council, and

bishops is authoritative and has the force of law (interpre

tatio authentica, necessaria] ;the same holds true of the inter

pretatio usualis. The construction of laws, as made by

judges of courts, binds only the actual parties to the suit,

who alone are obligated to abide by the judge s rulings or

explanations2

of the law. The explanation which is given

by theologians and3

canonists, though always deservedly

held in high esteem, need not, as a rule, be adhered to.

178. 11. Ex parte causae formalis or ex natura ipsius in-

terpretationis* the construction of laws is : i, declaratory

-

i.e., explanatory of the words of the law; 2, corrective i.e.,

favorable; 3, restrictive thus, penal laws must be con

strued strictly ; 4, extensible, by which laws are extended to

similar cases.

79- Q- What are the chief rules for the interpretation

of civil laws or statutes ?

1 Our Notes, pp. 438, 439. Craiss., n. 238.

1Reiff., lib. i., tit. 2, n. 362-306.

*Ib., n. 365.

Black stone. Introd., sect. 3, p. 21. Reiff., 1. c., n. 370-374.

79



8o Rules for the Interpretation of Laws.

A. i. The title of the act (or statute) and the preamble tothe act are, strictly speaking, no parts of it.

7

2. The real in

tention (of thelawgiver) will always prevail over the literal

sense of terms.8

3. The words of a statute are to be takenm their natural and

ordinary import and signification.Other rules may be seen in Kent and Blackstone.

10

Theserules

maybe

appliedalso to

ecclesiastical laws.

11

180. It may not be amiss here to add that Pope Pius IV.,in his constitution

"

BenedictDeus," confirming the decrees

of the Council of Trent, enacted very severe penaltiesagainst all

"

qui ausi fuissent ullos commentaries, glossas,adnotationes, scholia, ullumque omnino

interpretation^genus super ipsius Concilii (Tridentini) decretis quocumque

modo edere." This prohibition, which applies to no othercouncil, extends only to printed

"

ex professo"

interpretations, but not to incidental explanations, even thoughprinted, of individual decrees of the Council of Trent,"

7

Kent, Cora., vol. i., part Hi., sect. 20, p. 460-463. Ib., p. 462. Ib.quot;

Introduct., sect. 3, p. 21.

"

St. Liguori, lib. i., n. 200.

ReiffensL,1.

c., lib. i., tit 2, n. 382-447.Ap. Soglia, vol.

i., p. ia, 7. S| Ljg , ; n ,.,,o



PART II.

OF PERSONS PERTAINING TO THE HIERARCHYOF JURISDICTION IN GENERAL i.e., OF ECCLE

SIASTICS, AS VESTED WITH JURISDICTIO EC-

CLESIASTICA IN GENERAL.

CHAPTER I

DEFINITION OF THE CHURCH MEANING OF THE WORD

HIERARCHY IN GENERAL.

181. I. The Church is defined:"

Societas externa, visi-

bilis, atque ad finem mundi duratura, completa et indepen-

dens, distincta quoque, ac pro fine habens, omnibus homini-

bus procurandi media ad assequendam vitam aeternam."

Let us explain this definition.

182. i. The Church is a society; for she is named in

Sacred Scripture a kingdom, a city that is set on a moun

tain, etc. These symbols clearly imply that she is4

a

society. Theologiansalso

provethat she is

external, visible,

and indefectible.

183. 2. The Church is, secondly, a perfect and indepen

dent society. A society is perfect when it is complete in

itself, and therefore contains within itself adequate&

means to

attain its end. That our Lord has given his Church means

sufficient to attain her end is evident from various texts of

Craisson, 1. c., n. 244.*Matt. iv. 17.

&

Ib., v. 14.

*Bouix, De Princip., p. 499.

*

Tarqu., Jur. Eccl. Put . Inst., n. 6, 42.



82 Definition of the Church.

Sacred Scripture/ A society is independent when it is not

subject to the authority of any other society.7

Now, every

person in the world is bound to obey the Church in matters

pertaining to the sanctificatio animarum? But if no indi

vidual is exempt from the authority of the Church, it is evi

dent that no body of individuals i.e., no society is de

jure exempt

from it. The Church, therefore, is not subject

to civil society, but entirely independent of it; nay, more,

civil society, as far as the sanctificatio animarum is concerned,

is subordinate to the Church.

84. 3.The Church, thirdly, is distinct though not sepa

rate from civil society.10

185. From what has been said we infer: i. The Church

is not merelyacorporation (collegium}

orpart

.of civil so

ciety. Hence, the maxim"

is false,"

Ecclesia est in statu,"

or, the Church is placed under the power of the state. 2.

The Church is rightly named a Sovereign State. This is

proved by Soglia13

in these words :

" Ex defmitione Pufien-

dorfii, Status est conjunctio plurium hominum, quae imperio

per homines administrate, sibi proprio, et aliunde non depen-

dente, continetur. Atqui ex institutione Christi, Ecclesia

est conjunctio hominum, quae per homines, hoc est, per

Petrum et Apostolos, eorumque successores administratur

cum imperio sibi proprio, nee aliunde dependente ; ergo

Ecclesia est Status."

1 86. The members of the Church"

are divided into two

classes: i. Clerics or ecclesiastics (clerici}, i.e., those who

belong to the JiierarcJnaMordinis ; 2, Laics (laid), i.e., the rest

of the faithful.15

Matt, xviii. 18, xxviii. 18, 19; Luc. x. 16 ; Jo. xxi. 15-18

T


Matt, xviii. 17. Cfr. Prop, iq, 20 of Syllab. 1864.

9

Bouix, De Princip., p. 507.I0

Salzano, vol. i., pp. 18,19.

11

Bouix,De

Princip., p. 509.

wVol. i.,

p 137.

13

Tarqu.,1.

c., p. 92.M

Soglia, vol. i., p. 144.IB

Devoti, lib. i. tit. i, I, p. 72.



Definition of the C/iurc/i. 83

187. 11. Meaning of the term Hierarchy (Hierarchia}.

The words hierarchy, sacred power (saccr principatus], or

pre-eminence (sacra pracfcctura) are synonymous.10

The

term hierarchy, taken subjectively, denotes the body of per

sons having sacred or ecclesiastical power ;as such, it is

defined: "The body of persons having in various degrees

sacred power or pre-eminence"

;

"

taken objectively, ifsigni-

fies the power itself in sacred things ;as such, it is defined :

"

Sacred power as possessed by various persons in different

degrees."

"

Observe here, we use the word power both for

the potestas ordinis and the potestasjurisdictionis.

1 88. The word hierarchy, therefore, comprises three

things: i, sacred power or ecclesiastical authority; 2, a

number of persons possessing it; 3, rank and gradation

among thesepersons."

The hierarchy, therefore, whether of

order or jurisdiction, is vested in an organized body of

ecclesiastics;the Roman Pontiff is the head of this organi

zation.

189. Division of the Hierarchy of Ilie Church. I. By rea

son of its

origin,

the

hierarchyis divided into divine that,

namely, which was instituted by our Lord, and consists of

bishops, priests, and ministers;

?0

and into ecclesiastical or

that which was developed by ecclesiastical authority, v.g., the

dignity of patriarchs,21

primates, archbishops, and the like.

2. By reason of the sacred power vested in ecclesiastics, it

is divided into, I, the hierarchy of order (hierarchia ordinis)

that is ;

the power to perform sacred acts or functions

and to confer sacraments ; 2, the hierarchy of jurisdiction

(hierarchia jurisdictionis}that is, the power tu teach, define

dogmas, and oblige the faithful to believe in them;to make

ISBouix,l. c., p. 5 3- Ib.p. 514.

"

Ih.19

Ib.,p.5i5.

10 Cone. Trid., sess. 23, cap. iv., can 6."

Bouix, I. c., pp. 515, 516.



84 Definition of the Church.

laws; to take cognizance ol,and adjudicate upon, ecclesias

tical causes; to enforce the laws of the Church, and there

fore to inflict suspension, excommunication, deposition,

and other penalties; to convene councils, preside over and

confirm them;to erect benefices and appoint their incum

bents;to dispose of ecclesiastical property, etc." Some

canonists contend that this division is inadequate, since it

does not sufficiently take into account the teaching power of

the Church (potestas magisterii). Consequently, they divide

the hierarchy into the power (a) of order, (/^jurisdiction,

(c)and magisterii, thus adding the latter to the two for

mer." This, however, is superfluous. For, as Card. Tar-

quini well remarks, if this magisterium is a puruin magiste-

riuni, or simply the office of preaching and teaching, it is

no power, and therefore cannot be calledupotestas magis

terii" But if it means the power to compel the faithful to

believe in the doctrines defined, it is part of, and therefore

contained in, the power of jurisdiction. Hence it is not

necessary to recede from the division of the ecclesiasti

cal hierarchy commonly received in Catholic schools24

namely, into that of order and jurisdiction.

190. In the present volume, we shall discourse merely

on the hierarchia jurisdictionis. We shall, i, give a correct

idea of the nature of the jurisdictio ecclesiastica ; this will

form the Second Part of this book; 2, show of what per

sons the hierarchia jurisdictionis is composed i.e., in whom

the jurisdictio ecclesiastica is vested;

this will make up theThird Part of this work.

58Bouix, 1. r., pp. 521, 545.

23Cf. Phillips, Kirchenr., vol. ii., pp. 138, 139.

74Card. Tarq., i., p. 3, nota.



CHAPTER II.

NATURE AND OBJECT OF ECCLESIASTICAL JURISDICTION.

ART. 1.

Difference between the Poiver of Jurisdiction and that of Order.

191. There are those who erroneously contend that the

powerof

jurisdictionis not

separableor

essentially distinct from the power of order; that, therefore, since

bishops have the fulness of the potestas ordints or sacer-

dotii, they are by that very fact possessed of the plenitude

of the potestas jurisdictionis.1

If this theory were correct,

bishops would have the same jurisdiction as the Pope, and

consequently the latter s supreme and universal jurisdiction

would be destroyed.

2

In order to refute this most graveerror we lay down the following proposition : The power of

jurisdiction is essentially, and not merely accidentally, dis

tinct from the power of order, provided (a) the latter can

not be taken away from nor diminished in bishops, while the

former can be restricted ; (b) provided the power of epis

copal order can exist without the power of episcopal juris

diction, and vice versa ; but this is the case. Therefore, etc. 3

The major is evident.4

192. We therefore come to the minor, namely, \.\\e potestas

ordinis episcopalis cannot be taken away or diminished, while

the potestas jurisdictions episcopalis can be restricted.5 The

first part is proved from these words of the Council of Trent :"

1

Bouix, de Princ., p. 546.

&

Craiss., n. 250.

*Ib.

4Bouix, 1. c., p. 560.

*

Ib., p. 547, seq. Sess. xxiii., cap. iv.



86 Nature and Object of

" Forasmuch as, in the Sacrament of Order, a cnaracter is

imprinted which can neither be effaced nor taken away, the

holy synod, with reason, condemns the opinion of those who

assert that the priests of the New Testament have only a

temporary power, and that those who have once been rightly

ordained can again become laymen."The potestas ordinis,

therefore, is inamissible, cannot be restrictedcither in it-

s*lf7

or as to persons and places; it is, moreover, equal and

full or supreme in all bishops alike.8

193. On the other hand, the potestas jurisdictionis episco~

palis may be limited, I, as to place or countries: thus St.

Peter admonishes bishops :

" Feed the flock of God which

is amongyou"

&

that is, not the entire flock, but the particular

portion assigned10

them. St. Cyprian" expressly writes:"

Singulis pastoribus portio gregis adscripta est." 2. As to

matters : some have erroneously asserted that every bishop

has absolute power12

in his diocese. This is false: I. Be

cause oecumenical councils can make general laws i.e., laws

binding on13

all the bishops relative to ecclesiastical matters

or discipline; the Roman Pontiffs have the same14

power;

nay, even national or provincial councils have power to1 *

enact disciplinary laws obligatory on the bishops and metro

politans of the respective provinces ; now, it is evident that

if bishops are obliged, in the government of their dioceses,

as undoubtedly they are, to observe these laws, their power

is not absolute or unbounded as to matters. 3.As to persons :

thus, members of religious communities, male and female,

were exempted from episcopal authority already in the

first ages18

of the Church. The Council of Carthage (525)

decreed :

" Erunt igit.uromnia omnino monasteria, sicut

7Bouix, 1. c., p. 547.

*Ib.

i Petr. v. 2;cfr. ad Titura, i. 5 ;

Act. xx. 28.

"

Bouix, 1. c., p. 548.n

Epist. 55 ad Cornelium Papam.

"

Bouix, 1. c., pp. 546 and 551.1S

b., p. 551.

"

Ib., p. 552.

Ib"

Ib, p. 554-



Ecclesiastical Jurisdiction, 87

semper fuerunt, a conditiorie clericorum, modis omnibus

libera.""

194. The potestas ordinis episcopalis may exist in fact,

has existed without any jurisdiction, and, vice versa,

episcopal jurisdiction can exist without the episcopal ordo.

Thus it was ordered

bythe Council of Nice

(325)

that Mele-

tius: Bishop of Thebaid, should be deprived of all powei

and authority {potestas jurisdictionis) but yet retain the

character, dignity, and name of bishop {potestas ordinis}.

Again, some of the ancient chorepiscopi, though true bishops,

were not possessed of any jurisdictio ordinaria.Finally

honorary bishops were formerly created to whom no dio

cese wasassigned.

It is

evident, therefore,that a.

personmay have the potestas ordinis episcopalis without having any

jurisdictio. On the other hand, it is certain that a person

n&yhavejurtsdtcfto episcopalis without being vested with the

potestas ordinis episcopalis. Thus a bishop elect"

i.e., one

appointed already by the Pope though not yet consecrated

may govern his diocese with full authority as soon as he has

received the bulls. Chapters, also, or rather vicars-capitularwith us, administrators govern dioceses,

20

though not vested

with the potestas ordinis episcopalis. We observe here,

what is said of the powers of order and jurisdiction, as

vested in bishops, is also applicable to these powers as vested

in1

priests and sacred ministers; we argued from the episco

pal ordo and jurisdictio merely, for21

the reason that the

question is disputed chiefly as regards bishops.

195. To show more clearly the distinction between the

power of order and oi jurisdiction we observe, i. The po

testas ordinis is conferred by ordination;the potestasjurisdic-

tionis by legitimate22

mission. 2. The former is alike in all

that have the same ordo;the latter varies in degree, even in

"

Labbe,torn,

iv., col. 1649.

I8

Bouix, 1. c., p. 555.

*

lb,

p 559.**

Cfr. Soglia, vol. ii., p. 9."

Bouix, 1 c., p. 546."

Soglia, 1. c., p. g.



88 Nature and Objcrt of

ministers or officials of the same rank. 3."\\v potestas ordi

nis is not, properly speaking,&3

capable of delegation, while

\hejurisdictio is.

196. Our thesis is therefore established to wit, The

power of order and the power of jurisdictionare separable

and essentially distinct one from the other. This distinc

tion is thus expressed by the Council of Trent: "Si quis

dixerit . . . eos, qui nee ab ecclesiastica et canonica

potestate rite ordinati nee missi sunt, sed aliunde veniunt,

leg;itimos esse verbi et sacramentorum ministros, anathemao

sit."

44If solely by virtue of their ordination bishops and

priests were possessed of sufficient jurisdiction, the holy

synod

would not have added, nee missi sunt It is scarcely

necessary to observe that, while the two powers essentially

differ from each other and are separable, they do not on

that account necessarily exclude each other. Nay, some

times both powers together are required for the validity ot

an act v.g., for the validity of absolution."

ART. 11.

What is the precise extent or object,\

, of the Potestas Ordinis ;

2, of the Potestas Jurisdictions f

197. I. Potestas Ordinis. The term or<io means both the

act of ordination and the state of the sacred ministry."To

whatobjects

does thepotestas

ordinis extend? CraissOn

answers by this proposition: "Ad potestatem ordinis refe

renda est quaelibet connciendi vel conferendi sacramenta

aut sacramentalia potestas, quam Christus vel Ecclesia

alicui ordinum gradui alligavit.

"

198. The proposition just given embodies this principle:

wCraiss., n. 256.

24C. Trid., sess. xxiii., cap. iv., can. 7.

16Bouix, 1. c., p. 560.

- r

Craiss., n. 2^0."

Ferraris, V. Ordo, art. i.,n. i.

vMan., n. 257. Cfr. Soglia, vol.

i., pp. 143, 144.



Ecclesiastical Jurisdiction. 89

Sacramental functions are annexed to a determinate ordo in

such manner as to be performable& 9

only by a person in the

respective order. This principle, however, admits of va

rious exceptions. Thus, the bishop is the proper minister

of holy orders; yet minor orders may be conferred by a

priest. Again, the administration of the sacramentsoof Con

firmation, though attached to the ordo of episcopacy, maybe administered by a priest duly authorized. The potestas

"

ordinis is imparted by ordination.

199. II. Potestas Jurisdictions . In the Roman civil law,

jurisdictio meant simply the judicial authority i.e., the

power to take cognizance of causes by31

judicial tribunals or

judges of courts. In canon law, the term jurisdictio is taken

in a broader sense ; and from the time of Gregory the Great

it has been33

employed chiefly to express the entire legisla

tive, judicial, and executive power inherent in the Church;

**

it is therefore denned :

" Omnis ea imperii potestas, qua

Ecclesia regitur etgubernatur."

S5 We say : Imperiipotestas

i.e., authority which consists not merely in teaching and

exhorting, but in enacting and enforcing laws.39

Jurisdiction

is also named potestas publica, in contradistinction to the pri

vate authority, v.g., of parents over children.37

Besides the

above, jurisdiction also embraces the power of denning arti

cles of faith (potestas magisterii}, of convoking and presiding

over councils and the like.38

200. Jurisdiction is conferred by legitimate mission,

which consists in what is termed "

legit

imaassignatio

subdi-

torjim39

or deputatio Icgitiuia ad exercendiim munus spirituals.

Acts of jurisdiction performed by40

persons not properly

deputed are null and void.

wCfr Phillips, Kircheni., vol. ii

, p. 141.la

Ib. p. 142.

11

Soglia, 1. c., p. 144.wBouix, 1. c., p. 545.

"

Phillips, 1. c.. pp. 5, 6.

84

Soglla, vol. i., p. 145 seq.w

Ib."

Ib.

"

Reiff., lib. i., tit. 29, n. 3. w Bouix, 1. c., p. 545.

"

Soglia, 1. c.<0

Cfr. Conc.Trid., sess. xxiii., can. 7, 8



go Nature and Object of

201. Q, Is the Church possessed of jurisdiction in the

proper sense of the term ?

A. Protestants contend that the entire power of the

Church consists in the right to teach and exhort, but not in

the right to command, rule, or govern ;whence

tb*5y infer

that she is not a perfect society41

or sovereign state. This

theory is false;

for the Church, as was seen, is vested juredivino with power, i, to make laws; 2, to define and apply

them (potestasjudicialis) ; 3, to punish those who violate her

laws {potestas coercitiva}.

202. The punishments inflicted by the Church, in the exer

cise of her coercive authority, are chiefly spiritual (poenae

spirituales], v.g., excommunication,43

suspension, and inter

dict. We say chiefly ; for the Church can inflict44

tem

poral and even corporal punishments.46

203. lias the Church power to inflict the penalty of

death?4

Card. Tarquini thus answers: I. Inferior eccle

siastics are forbidden, though only by ecclesiastical law, to

exercise this power directly.47

2. It is certain that the Pope

and oecumenical councils have this power at least mediately

that is, they can, if the necessity of the Church demands,

require a Catholic ruler to impose this penalty.48

3. That

they cannot directly exercise this power cannot be proved.4 &

204. What objects or things fall under ecclesiastical juris

diction? Some things come directly within the reach or

compass of the Church s authority, others but indirectly.60

i.

Now,those matters and acts fall

directlyunder ecclesias

tical jurisdiction which are essentially spiritual. But how are

temporal things distinguished from spiritual? Certainly not

because the former are corporeal, visible, or external, while

the latter are invisible or immaterial ; otherwise, sacraments,

41

Ap. Soglia, vol. i., p. 145.4i

Cfr. ib, p. 152.

& 3Ib

, p. 153.

"

Cfr. Syllabus, Prop 24.4 &

Stremler, Femes Eccl , p. 13, seq.

46 Cf. Reiff., lib. i., lit. 29, n. 25, 26."

Tarq., 1. i., n. 47, ad ~m., p. 48.

Ib.49

Ib.:

Cfr. Craisson, Man., n. 263.



Ecclesiastical Jurisdiction. 91

being visible signs, would have to be accountedM

temporal

objects. Spiritual things, therefore, are distinguished from

temporal by reason of their respective ends. Hence, those

matters are spiritual52

which have an exclusively spiritual61

end namely, the salvation of the soul even though they be

of a corporal structure. 2. On the other hand, things are

temporal, and come within the cognizance of the civil power,

when, evenMthough not corporeal or visible, their imme

diate end is temporal or civil i.e., when they are ordained

directly for the welfare of civil society. 3. Temporal things,

however, fall directly under the Church s authority, so far

as they are capable of becoming objects of supernatural acts

and virtues or also vices. Suarezbh

writes :

"

Quiafere tota

materia temporalis ad spiritualem finem ordinari potest, et

illi subest, sub illo respectu inducit quamdam rationem spi-

ritualis materiae, et ita potest ad leges canonicaspertinere."

205. There is still another class of things, those, namely,

which pertain at the same time, though not under the same

respect, to both powers the spiritual and the temporal and

are consequently named quaestiones mixtae or mixti fori.

Now, things may fall under the cognizance of both powers,

and therefore become m:xti fori chiefly in three ways:

I. When they have two ends one civil, the ot ^r ecclesias

tical or spiritual. Marriage is a case in point.57

All ques

tions bearing on the sacramental character of matrimony,

v.g.y the validity of marriages or betrothals, fall under the

Church s jurisdiction. Questions, however, respecting the

property of married persons,68

inheritance, and the like, are

within the competence of civil courts. 2. When, for the

better execution of laws,69

the Church and state assist

"

Phillips, vol. ii., p 534.M

Ib., p. 536.M

Soglia, vol. L, p. 320.

MPhillips, 1. c., p. 536.

" De Leg., lib. ii., cap. n, n. 9.

"

Phillips,

1. c., p. 542."

Ib.,p. 545.68 Bened. XIV

,De Syn., lib ix., cap. ix., n. 3,4.

19

Phillips, 1. c. p. 543.



92 Ecclesiastical Jurisdiction.

one another, v.g. yin the suppression of rebellion or heresy

3. By historical evolution.60

206. Things, moreover, may come within the jurisdiction

of the Church not only by reason of their nature&

or cha

racter, as we have just seen, but also because of thepersons"

to which they refer. Thus, according to the common law

of theChurch,

ecclesiastics are notamenable

to thejurisdic

tion of civil courts;the bishop

63

is the only competent

judge in all their causes. We say, according to the com

mon law of the Church; for, at present, this privilege is

almost everywhere greatly64

restricted. Ecclesiastics mayalso implead and be impleaded in many instances in civil

courts, especially in non-Catholic countries."5

"

Phillips, I. c., p. 544. "Cfr. Benedict XIV., I.e., n. 8.ej

Ib.

Ib., n. 9. Cfr. Soglia, vol. i., 58."

Bened. XIV., 1. c., n. II, I*.

*Infra, n 415, 455,



CHAPTER III.

DIVISION OF ECCLESIASTICAL JURISDICTION.

207. Jurisdiction in general is distinguished into eccle

siastical and civil or political.1

Ecclesiastical jurisdiction, of

which we here treat, is divided :

208. i. Intp jurisdictio fort interni et fort externi. By

forum is meant either the place of trials or the exercise*

itself of judicial authority. I. The jurisdictio fori interni

is that which refers primarily and directly to the private

utility of the faithful3

Liken individually ;it is exercised

chiefly in the administration4

of the sacraments. The juris

dictio fori interni is subdivided into the jurisdictio fori poeni-

tentialis, or that which is exercised only in the tribunal of

penance, and into the jurisdictio fori interni extrapoeniten-

lialis that, namely, which is exercised out of the confes

sional." 2. The jurisdictio fori externi is that which relates

primarily and directly to the public good of the faithful

taken as abody."

To make laws, decide controversies on

faith, morals, or discipline, punish criminals, and the like are

acts of the jurisdictio fori externi. Hence, a person mayhave jurisdiction in foro interno but not in foro externo, v.g.,

parish priests ; and, vice versa, one may possess jurisdiction

in foro externo without having any in foro interno, v.g., vicars-

general not yet in sacred orders but merely in clerical ton

sure. Civil society has no jurisdictio fori interni.7

209. 2. Into universal and particular. \$y jurisdictio unu

1

Reiff., lib. i,

tit. 29, n. 7. Craiss., n. 277.&

Bouix, De Princ., p. $6a

*Craiss., n 277. Bouix, I.e., p. 561. Ib. Ib., p. 562



94 Division of Ecclesiastical Jurisdiction.

versalis we mean that which is unlimited as to, i, persons ; 2,

places or countries; 3, matters subject to the authority of

the Church. Such was the jurisdiction of the Apostles

sucli is, at present, that of the Roman Pontiffs and of oecu-

nenical councils.8

By jurisdictio particularis we mean that

which is restricted either as to, I, persons; 2, or places; 3,

or things. When particular jurisdiction is confined to a cer

tain class of persons, but not9

to any particular place, it maybe exercised everywhere. Thus, prelates of regulars can

everywhere exercise jurisdiction over monks subject to

them.10

210. 3. Into voluntary and contentiousjurisdiction."

Vol

untary jurisdiction {jurisdictio voluntaria jurisdictio extra-

judicialis) is that which the bishop or superior can exercise

without any judicial formalities (absque forma judicii}. The

ordinary can exercise it everywhere, even when he is not in

his own diocese. Contentious jurisdiction (jurisdictio conten-

tiosa jurisdictio judicialis) is that which is exercised cum

forma judicii i.e., according to the forms prescribed for

trials or judicial acts. A prelate cannot, either licitly or

validly, exercise contentious jurisdiction out of his owm

territory."

211. 4. Into ordinary and delegated jurisdiction. Bv

jurisdictio ordinaria we mean that which is, by law, whe

ther divine or ecclesiastical, or by custom or privilege, per

manentlyI6

attached to an ecclesiastical office or dignity.1

Hence, a juthx ordinarins is one who exerciresjurisdiction

by virtue of his office, and therefore in his own name {jure

proprio,j:ire suo, jure officii sui}.

212. The title ordinarius, however, is not applied to every

Bouix, 1. c., p. 562. Mb. 10Bouix, De Princip., p. 563

uReiff, lib. i., tit. 29, n. 8, 9.

wCraisson, Man., n. 281.

11

Bouix, De Princip., p. 565."

Craisson, 1. c.

"

Phillips, Kirchenr.,vol.

ii., p. 146.

&

Ib., vol. vi., pp. 752, 7^1.17

Phillips, Lehrb., p. 369. Soglia, vol. ii., p. 448.



Division of Ecclesiastical Jurisdiction. 95

one having jurisdictio ordinaria" but to those only who

have jurisdictio ordinaria in foro c.rterno, v.g.< bishops, vicars -

general, etc. Parish priests have jurisdictio2J

ordinaria only

in foro intcrno, but not in foro externo, and are not, conse

quently, ordinarii

2\^.

As thejurisdictio

ordinaria attaches to the office it

self (officiunt}, it is always obtained simultaneously with the

office, and is not lost until the office is either" resigned or

lawfully taken away.

2\^. Jurisdictio dclcgata is that which a person exercises,

as a rule, only by order or commission23

of some one having

jurisdictio ordinaria;

a dc egatns, therefore, acts not by

virtue of his office orin" his own name, but in the name of

another. We say,"

as a rule," ionjurisdictio delegate, is ex

ceptionally"

given also by the law itself. Such, for in

stance, is the power which the Council of Trent granted to

bishops in regard to exempted regulars. Hence, dclegati

have jurisdiction either ab Jwininc or a jure i.e., they are

commissioned or delegated either by a person having jnris-

dictio ordinaria or by \\~\Qjus commune and custom.26

Bishops,

for example, are in many instances empowered by the jus

commune, v.g., by the Council of Trent," to act tanquam

sedis apostolicae2S

dclegati.

215. Bishops receive jurisdictio -delegata a jure when the

jus commune 28uses the phrase tanquam sedis apostolicae

delcgati, or"

etiam tamquam sedis apostolicae delegati."

When bishops proceed simply "tanquam sedis apostolicae

delegati,"it is allowed to appeal from them to the Sove

reign30

Pontiff only, but not to the metropolitan ;but if they

"*

Bouix, De Princip., p. 567.*


91Cfr. Cone. Trid., sess. xxiv., cap. i.

MSojjlia, 1. c., p. 449.

MPhillips, Lehrb., p. 369.

<

ReiflF., lib. i,

tit. 29, n. 12

"

Phillips, 1. c.M

Craisson, 1. c., n. 285.

"

Sess. v., cap. i.;sess. vi

,c. 2 de Ref., etc. M Bouix, 1. c., p. 570.

Craisson, Man., n. 285.*

Reiff, 1. c., n. 36.



96 Division of Ecclesiastical Jurisdiction.

act"

etiam tamquam," etc.,31

an appeal lies to the archbishop

Observe, whenever bishops are authorized to proceed3

ctiam tamquam, etc., they are vested both with jurisdictio

ordinaria and jurisdictio delegata, and may act by virtue of

either power.34

216. 5. Into jurisdictio inuntdiata and jurisdictio medi-

ata?*Jurisdiction

is immediate when it can be exercised

at all times, not merely in case of necessity ;such is the au

thority of the Pope throughout the entire Church, of the

bishop in his diocese, and of the parish priest in his parish.

On the other hand, mediate jurisdiction is that which cannot

be exercised save in certain cases determined by law; such,

for instance, is the authority of metropolitans over the sub

jects

36

of their suffragans. We say "subjects of suffra

gans"for over the suffragans themselves archbishops have

jurisdictio ordinaria and immediata.n

217. Q. What is the nature of the jurisdiction vested in

the Supreme Court of the United States ?

A. The original jurisdiction of the Supreme Court is con

fined to those cases39

which affect ambassadors, other public

ministers, and consuls, and to those cases in which a State is

a party. The appellate jurisdiction of the Supreme Court

exists only in those cases in which it is affirmatively given."

Its whole appellate jurisdiction depends upon the regula

tions of Congress.

11Reiff

,1. c., n. 37. Cfr. Cone. Trid., Sess. xxii., cap. x., d. R., and Sess.

vi., cap. iv.

82

Craiss., n. 287.33

Bouix, De Paroch., pp. 281, 282. Paris, 186784

Reiff., 1. c., n. 38.3S

Craiss.. n. 288.

88Cfr. Phillips, Kirchenr., vol. vi., p. 829 seq. Ratisbon, 1864.

"

Reiff., lib. i., tit.31,

n. 40.3S

Ib., n. 35.

19

Kent, Com. i., p. 314.*

Ib., p. 324.





98 On the Mode of Acquiring

ART. II.

Of the requisite Title to Jurisdiction, and its Necessity.

220. By the word title (Titulus], in general, we here

mean the act by%vJiich

poweris

givento a

personto

perform ec

clesiastical functions*

221. Division. Titles are true or false. They are true

or legitimate (Titulus verus] i.e., not vitiated or defective,

i,when they are conceded in due form

; 2, to persons pro

perly qualified; 3, by those who are vested with libera

potestas."Titles are false

(Titulus falsus] when they are de

fective as to any of the above conditions. A false title,

when deemed legitimate by others, is also called Titulus

putativus.

222. A title may be false or illegitimate in three ways :

T

i. When it has in no way been granted by the superior, or

not for the case, place, time, or person in question. Hence,

the false title in this case is named Titulus Jictus. 2. When,

though given by the proper superior, and of itself capable

of conferring jurisdiction, it is nevertheless rendered void

by some occult defect, either (a) in the grantor ; thus, if the

death of the bishop were unknown, his vicar-general would

have but a colored title; (U] or in the grantee, v.g., by oc

cult irregularity, or if he has been deprived of his title, and

this fact is unknown; (c] or in the concession itself of the

title, v.g.,if secret simony intervened. A title defective in

these three ways is termed Titulus coloratus. 3. When

conceded by a superior who had no power to do so,

v.g., by the archbishop, out of those cases where he

may supply the negligence of suffragans ;or il the title

is indeed given by a competent superior, but is other-

Craiss., n. 2928Ib.

TIb., n. 293.



Ecclesiastical Jurisdiction, in General. 99

ivise manifestly defective. Such title is a Titulus simpliciter

nullus.

223. Q. Is a false title sometimes sufficient to obtain

jurisdiction?

A. Craisson" answers that where a true title is wanting,

a fakse or putative one is sufficient in foro interno and ex~

terno for the valid exercise of jurisdiction, both ordinary

and delegated ; provided, I, there be common error; 2, the

defect in the title be curable by the Church; 3, there be at

least a colored title.

224. The third condition, tJiat there be at least a colored

title, is, however, not considered essential by all canon

ists;for it is a mooted question whether a titulns coloratus

is absolutely necessary. Many affirm that error communis is

sufficient, without any title whatever. St. LiguoriI0

thinks

this a probable opinion. It is therefore probable that a

priest can absolve validly even though he has,"in reality, no

jurisdiction, provided it is believed by"

error communis"

that he has faculties. Hence, as Sanchez&

says, a confessor

approvedfor one

yearcan

validlyabsolve, even after the

lapse of the year, if it is commonly believed that he still

possesses faculties. So, also, a confessor from another diocese

can absolve validly in a diocese"

where he is not approved,

if by"

error communis"

he is considered approbatus ad

confessiones.

225. We say, the absolution in these cases is probably

valid: is it also

14

lazvful? In other words: Isit

lawful for

a confessor to administer the sacrament ot penance with the

above jurisdictio probabilis, given him by"

error communis"

?

There are three opinions : the first denies;

the second

affirms; the third, which is the one embraced by St.

B

Craiss., 1. c., n. 294. Bouix, De Judic., vol. i., p. 134. Paris, 1866.

10Lib. vi., n. 572.

"

Notes, p. 218."

Ap. Craiss., Man. n. 304,

11Cfr. Bened. XIV., Instil. 84, n. 14-23. Prati, 1844.

14Ih.. n. 16.





CHAPTER V.

ON THE MANNER OF ACQUIRING ECCLESIASTICAL JURISDIC

TION, IN PARTICULAR MODE OF ACQUIRING JURISDIC-

TIO DELEGATA.

226. By a delegate (delegatus) we mean, in general, a per-

son empowered to act or exercise jurisdiction for another.1

Jurhdictio delcgata, as was seen, emanates either a jure or ab

homine?

227. Q. What persons have power to delegate z>.,

conkrjurisdictio dclegata upon others ?

A. All persons vested \v\t\\jiirlsdictioordinaria can, as a

rule, delegate others. But neither ordinary superiors nor

delegati ad universitatem* causarum can, without the consent

of the Pope (inconsulto Principe], commit their entire au

thority in perpetuum6

to others ; the reason is, as Ferraris/

speaking of the judex ordinarius, says :

"

Quia delegando

alteri totam suam jurisdictionem, sen totum suum officium

ipsi committendo, non tarn censetur delegare quam omnino

abdicare se officio suo ordinario, quod nequit fieri sine con-

sensu Principis."

228. Q. Can delegati i.e., persons who themselves have

\z\i\.jurisdictio delegata s?b-dclegate others ?

A. Delegati are deputed (a) by the Pope or the Sacred

Congregations; (If) by inferior ordinaries.7

I. A person delegated by the Pope or the Sacred Con-

1 Cfr. Ferraris, V. Delegatus, n. 1-3. Supra, n. 214.

*Reiff., lib. i., tit. 2q, n. 55. Cfr. Regula Juris in 6.

4

Craiss., 1. c., n. 312.

*

Bouix, De Judic.,vol.

I., pp. 144, 145

V. Delegatus, n. 15.7Craiss., 1. c., n. 308.



IO2 On the Manner of Acquiring

gregations can, as a rule, sub-delegate others i.e., authorize

them to act for him. We say, as a rule ; for two exceptions

must be admitted: I, "Si sit electa industria personalis*

delegati." Now, a delegates is supposed to be chosen "ob

industriam persona em"

when, for instance, he is com

manded in the letters of delegation to attend personally1 *

to the matter, v.g., by the words,"

per teipsum,"or

"

per-

sonaliter exequaris"

; 2, if the power delegated is simply

ministerial," ?;.., the execution of dispensations of marriages;

yet, even in this case, sub-delegates may be employed, i-.g..

to collect information or to ascertain whether prcces ver\tatf

nitant ur"

229. II. A person delegated by inferior ordinaries, v.g^

by bishops, cannot,as a

rule, sub-delegateothers.

13

We say,as a rule ; because it is the common opinion

14

that, when

such person is delegated ad universiiatem causarum, in

view of his office (tanquam per officiuui) he can sub-delegate

others. Bouix,1 *

however, thinks it unsafe even for a

delegatus ad nniversitatem causarum to sub-delegate others,

save where a legitimate custom of the country sanctions it.

230. Rural deans

16

and pastors in the U. S. to whom acertain kind of causes or matters is collectively committed

v.g., the power to grant, in a certain district, dispensations

from one or two of the proclamations of the banns of mar

riage would appear to be accounted delegati ad universita-

tem causarum" and would seem, therefore, authorized to sub"

delegate others with regard to particular cases.

231. Q. To what persons can jurisdiction be dele

gated ?

A. Generally speaking, only to those who, I, are free

Cfr. Ferraris, V. Delegatus, Novae addit. ex ali<-na manu, n. 12,

Bouix, De Judic., vol. i., p. 145.10

Cfr. Reiff., 1. c., n. 60.

11

Ferraris, 1. c., n. 23, 24. Craiss., 1. c., n. 308"

Bouix. 1. c., pp. 145, 146.M

Ib., p. 146. *bk

&

Cfi Cone PI B It II.. n. 74.:T

Cr is ., 1 c., n. 311.



Ecclesiastical Jurisdiction, in Particular. 103

from defects that debar a person from jurisdiction, and, 2,

have the requisite qualifications."

232. I. Now, the defects (uitia) that disqualify a person

to hold jurisdictio delegata are, I, a natura, v.g., deafness,

loss of speech, insanity, and the like; 2, a

lege, v.g.," excom-

municatio non tolerata," infamy; 3,a moribus, i e., custom

thus, slaves and women cannot \>zjudices delegati

233. II. Of the necessary qualifications (dotes), some r;rc

required in every delegation ; thus, as a rule, clerics only,

and" not laymen, can be delegated ;others are required in

certain cases only. Besides, as a rule, a person, in order to

be capable of being delegated by the Pope, should be an

ecclesiastical dignitary, or a canon of a cathedral chapter,

or a vicar-general of a bishop, or a conventual prior or

superior of regulars. We said,"

as a rule"

; for, at present,

as we have shown," ordinary confessors and priests are not

unfrequently entrusted with the execution of dispensations

or faculties granted by the Holy See."

234. Q. Can an ecclesiastical or at least a civil cause of

clerics be delegated or committed to a layman ?

A. i. Bishops and other prelates24 inferior to the Pope

cannot delegate to laymen either, i, spiritual (causae mere cc-

ilesiasticae, causae spiritnales] ; 2, or criminal causes (causae

criminates] of ecclesiastics ; 3, neither can they, according

to the more probable opinion," assign to lay judges for

judicial cognizance even the civil causes (causae chiles,

causae tcmporales) of clerics.2

2. The Sovereign Pontiff may, however, commit to laics.

r.g., to kings, not only civil or temporal, but also a certain

number of ecclesiastical or spiritual causes of clerics;C7

but

he cannot subject all ecclesiastics and all causes of ecclesia -

18

Craiss., 1. c., n. 313."

Ferraris, V. Delegntus, n. 25, 20.

"

Cfr. Reiff., 1. c., n. 66.*

Craiss., I. c., n. 315.BSupra, n. 54

K Ferraris, V Delegatus, n. 31"

Reiff., libi

, tit. 29, n. 88.

"I .. n. SQ-Q:M

Cfr. Crais,

1 n ;i6 Rein. I c. a qa.





Ecclesiastical Jurisdiction, in Particular. 105

conjungat, vel infantesbaptizet."

"

The statutes of Newark

enjoin the same38

S2ib gravi.

237. 2. The delcgatio should, moreover, be made known

to the delegatus, and accepted, at least, implicitly by him."

238. 3.The delcgatio should be free

; hence, if a superior

gives delegated faculties altogether against his will, the act

is invalid. We say altogether ; for if he did so even out of

metus gravis et injustus^ his act would not, on that account,

be invalid.38

239. 4. It need not be in writing, save in cases pre

scribed by law.39

240. In the use or exercise of jiirisdictio delegata, the dele

gatusmust state that he acts

byvirtue of

delegated powers.Hence, bishops in the United States, when conferring upon

their priests such faculties as they hold from the Holy See,

as also in dispensing from impediments to marriage, use this

form :

"

Vigore factiltatum a S. D. N. Pio IX. (Leone

XIII.) nobis collatnrurn," etc., or similar formulas.40

88

Syn. Boston. IT., ami. 1868, tit. 4, n. 46."

Statuta Novarc, p. 12.

"

Craiss., n. 323.M

Ib., n. 324.M

Ib., n. 325.40

However, these or similar formulas, except where the Papal indult re

quires it, and that on pain of nullity v.g. , by the phrase alias nullae sint are

no longer necessary to the validity of the above dispensations or faculties.

Hence, these dispensations and faculties, when granted by bishops in the U. S.

informally v.g., orally, or even by telegraph, in some such simple words as

"the dispensation or faculty is granted"

are valid, and, if there be sufficient

cause for this mode of concession, also licit. For the above formulas are not,

at least at the present day, prescribed on pain of nullity in the faculties given

our bishops by the Holy See (Konings, n. 1628, q. 6).







io8 Manner of Acquiring

A. I. Erection of Episcopal Sees, In the beginning of the

Church, not only St. Peter, but also the otherapostles,"

erected episcopal sees;for all the apostles ;

without excep

tion, received from our Lord jurisdictio universalisi.e.,

"jurisdictio in tolam Ecclesiam et in totum orbcm" ThisyV/rw-

dictio universalis included the power to establish bishoprics.18

But, as Craisson2n

remarks,"

Potestas universaiissingulis

apostolis a Christo tributa, transmissa non fiat ad eorum in

episcopatu successores;sed sola potestas Petri, utpote ordi-

naria, ad ipsius successores seu summos Pontinces, debuit

transire."

247. Hence, upon the death21

of the apostles, no bishop,

rics could be established save by the consent of the Pope.

From this we are not, however, to infer that in the first centuries episcopal sees were always erected by the immediate

authority of the Holy See ; for ecclesiastical discipline on

this head suffered change at three different23

periods.

The first period extends from the beginning of Christianity

to the sixth century. During this epoch episcopal sees were

erected chiefly by provincial councils, without the express

sanction24

of the Holy See. We say, i, chiefly by provincial

councils;for no small number of bishoprics were, even dur

ing25

this time, established by the P>pes.

We say, 2, wit/tout

the express sanction of the Holy See ; because provincial coun

cils, in erecting episcopal sees, were bound to observe the

la*vs enacted or approved by the Roman Pontiffs;

2

this is

evident from the fact that when the African bishops, con

trary to the laws of the Church on this head, instituted

bishops even in small places, they were reproved"

by PopeSt. Leo for so doing. In the Eastern Church bishoprics

"

Craiss., n. 332.&

Bouix, De Episc., torn, i., pp. 45, 46.*"

Cfr. Soglia, vol. i., pp. 207, 208.*"

L. c., n. 332.* J

Devoti, lib. i., tit. 5, sect, i, n. 5, p. 202.m

Craiss., n. 332.*3

Soglia,1.

c., p. 203.

"

Ib., p. 204.

vs

Ib., p. 205.**

Craiss., n 333."

Ib.



Jurisdictio Ordinaria. 109

were at first established exclusively by the patriarchs ; but

after ecclesiastical provinces had been formed, this powerwas exercised also by metropolitans and provincial councils."

248. 2. The second period reaches from the sixth to the

eighth century. During this time metropolitans and provin

cial councils were no29

longer free to establish bishoprics

without the express30 consent of the Roman Pontiffs.

249. 3. The third period extends from the eighth cen

tury to the present day. During this period the power to

establish episcopal sees reverted exclusively, though gradu

ally,

31

to the Sovereign Pontiffs, by whom alone it is exer

cised at the present day at least, so far as the Latin Church

is concerned." We must, therefore, distinguish in this mat

ter the question of right from that of fact. The right or

power to erect bishoprics is and always has been, de jure,

vested in the Popes alone;as a matter of fact, however, this

power was exercised also by34

others, although only by the

express or tacit permission of the Holy See.

250. II. Chapters can, at present, be established only by

the

Pope,

35

but not

by bishops.This

appliesnot

merelyto

chapters of cathedrals, but also to those of collegiate*1

churches.

25 1 111. Parislies or parochial churches may undoubtedlybe established by bishops, provided certain conditions be ob

served by them.37

The nature of these conditions depend?

upon the manner in which parishes are established. Now,

parishes are established chiefly in three ways:" I, per via>

creationis ; 2, per viam dismembratioms ; 3, per viam uniort?

We shall briefly treat of each of these modes.

"

Soglia, I. c., p. 205.**

Ib.30

Craiss., n. 334."

Soglia, 1. c., pp. 206, 207.M

Craiss., n. 334."

Soglia, vol.i., p. 203.

**Cfr. Ib., pp. 209, 210.

**

Bouix, De Capitulis, pp. 190, 191. Paris, 1862.

"

Cfr. Phillips, Kirchenr., vol. vii., pp. 2Ss, 286. Rati^bon, iSfxj.

"

Craiss., n. 336.:i t

It)



iio Manner oj Acquiring

ART. 11.

Erection of Parishes "perviam creationist

252. The erection (erectio, constitutio) of benefices in gene-

ral is thus defined :

"

Erectio beneficiorum est actus legiti-

mus quo sacrum aliquod officium, vel ministeriurn in certa

Ecclesia vel altari, a clerico obeundum, constituitur cura

perpetuo reditu, quem clericus jure suo percipiat turn ali-

mentorum et stipendii causa, turn ad ferenda onera bene-

ficii.39

253. New parishes are erected per viam creationis when

they are formed, not from portions of parishes already in ex

istence, but from people or territory not yet assigned to any

parish,40

as happens usually in partibus infidelium." In the

United States new parishes (quasi-parishes) are still frequently

established in this manner. In Europe, where the Catholic

faith has ruled for centuries;and where it can therefore

scarcely happen that there should be Catholics not yet ag

gregated

to someparish,

the erection ofparishes per

viam

creationis can scarcely occur.42

254. There can be no doubt that bishops, by virtue of

their"

potestas ordinaria" can create new parishes that is,

constitute priests who shall have the care of souls in their

own name (nomine propno) and by virtue of their office (ex

officio),in such districts and over such people as are not yet

aggregated to any other parish.

43

255. In establishing new parishes, whether "

per viam

creationis," or"

per viam dismembrationis," or"

per viam

unionis," or otherwise,44

the bishop is, dejure communi, bound

to provide, as lar as possible, for the suitable maintenance"

of the pastor. This applies, of course, also to the United

*Soglia, vol. ii., p. 153. Bouix, De Paroch., p. 243.

41Craiss., n. 337.

*3

Bouix, 1. c., p. 245. Ib44

Ib. Craiss., n. 338.





1 1 2 Manner of Acquiring

safely only by conforming to the civil law on this head.

Thus, congregations in the United States can, as a rule, hold

possessions in their capacity of congregations only by be

coming incorporated according to law.51 And as the civil

laws relative to corporations are not unfrequently opposed

to the laws of the Church (v.g., by vesting the title to the

propertyin

lay trustees), bishopswith us are at times com

pelled to hold the entire Church property of the diocese

absolutely in their own name i.e., in fee simple and not

merely in trust.

lîf 258. Q. Can bishops, by virtue of their ordinary

power, change parishes whose rectors are removable ad

nutuin into parishes whose rectors are irremovable?

A. They can. For, as we shall show farther on, the general law of the Church not only authorizes but commands

bishops to appoint irremovable rectors for allparishes."

Hence, as we shall see later, the Holy See always most

earnestly urges bishops in whose dioceses there are paroeciae

amovibiles, to change them into paroeciae inamovibilcs. In

fact, the law of the Church presumes that the care of souls

will be much better exercised by a rector who is inamovibiles,

and who is therefore regarded as the father of his parish

ioners and the sheplierd of his flock, than by a removable rec

tor, who, because of his movableness, is not looked upon in

law as a shepherd, in the full sense of the term. (Cf. De

Angelis, 1. 3, t. 29, n.3.) /?, p. 498.

In accordance with these principles, and the proposals

made by the S. Congr. de Prop. Fide, in the Conferences

held at Rome in 1883, the Third Plenary Council of Balti

more ordains that in every diocese the bishop shall, with the

advice of his consultors, select a certain number of our mis-

54 Nixon s Digest, p. 686, edit. 1855 ; cfr. Cone. PI. Bait. II., n. 200.

K Cone. Trid., sess. 24, c. 13, De Ref.



Jurisdictio Ordinaria. 1 1 3

sions (all of which have been thus far missiones amwibiles)

and make them missiones inamovibiles, in such number, that

at least one rector out of every ten will be in future irre

movable."6

However, the Council advises the bishops not to

exceed this number, except for good reasons, within the first

twenty years after the promulgation of its decrees. The

words of the Third Plenary Council (n. 35) are:"

Quae pro-

portio (unus inter decem) ne inconsulte excedatur intra

viginti primos annos post Concilium" (Plen. Bait. III.) "pro

mulgatum."The proportion of one out of every ten was

agreed upon as the minimum in the Conferences held at

Rome in 1883, between the Cardinals of the Propaganda and

our prelates.

Of course, in this whole question we prescind from certain

cases, altogether special and exceptional, particularly where

the rights of third parties are involved. Thus the Holy See

(S. C. C.) has decided that where a cathedral chapter has

the right to appoint and remove at its will the rector of the

cathedral,a or where a person founding a parochial church

stipulates

in the act of foundation that the rector shall be

removable, the bishop cannot make such rector irremovable.b

tSif" Q. Can bishops, also in the United States, change

parishes or missions whose rectors are irremovable into par

ishes or missions whose rectors are removable?

A. They cannot. For they cannot derogate from or dis

pense in the general law of the Church which forbids rectors

to be made removable, as we have seen. Hence the Popealone can make the change in question. Besides, it is a

general principle of law that while bishops can ameliorate

the condition of churches, and therefore change removable

rectors into irremovable, they have no power to deteriorate

66 Cone. PI. Bait. III., n. 33. 35.

S. C. C. 29 Aug. 1857, Apud Lucidi, vol. iii., p. 243, n. 8. 9; ib., p. 248 so.

b Pyrr. Corrad., Praxis Benef. ,lib. i. cap. 6, n. 270. Colon. Agr., 1697

eCorradus, 1 c., n. 288.





Ordinaria. 115

every parish in the diocese, thus retaining the titles of the

parishes and giving but the administration or cura actualis

to our rectors, who are consequently vicars of thebishop."

260. Are our congregations or churches canonical pa

rishes? De Angelis seems to hold the affirmative. His

argument is: A canonical parish is a church set apart by

the bishop, and having a population living within certain

fixed limits, and in charge of a priest or rector, who alone

can by virtue of his office preach and administer the sacra

ments and other spiritual offices to the parishioners.There

fore, when the bishop has designated a church and assigned

it people living within certain fixed limits, and, moreover,

appointed a rector to have sole charge, he has erected a

canonicalparish. Nor

is it

necessarythat the

bishop,

in

erecting a canonical parish, should expressly mention irre

movability, for it inheres in benefices proper, and conse

quently also in canonical parishes, by virtue of the common

law of the Church.

261. Now,.continues this eminent canonist, in the United

States parishes have generally been assigned fixed limits,

and are governed each by one rector, who has sole charge;

therefore, etc.94

However, it is the general impression

here that our congregations, except perhaps in some parts

of California, are not canonical parishes.

ART. 111.

Erection of Parishes per viam dumcmbrationis Division

of Parishes also in the United States.

262. Definition. Parishes are erected per viam dismembra-

tionis or division is, when certain portionsare taken away from

one or several old parishesin order to form new ones; or

simply when old parishes are divided in order to form new

49 De Angelis. Pruel., lib. i., tit. 2.S. p. 54.

& 4

Ib.






vision of a parish and the formation of a new one." Ob

serve, however, that the distance or the obstructions of the

locality must be such as to make it very difficult for parish

ioners to reach the church;in a word, they must be such as

to cause a magnum incommodum^ No precise rule, how

ever,75

can be laid down as to what distance or difficulty of

access to the church is required. The bishop is the com

petent judge.76 A distance of two miles, or according to

some, of one mile and a half, is deemed sufficient;even a

smaller distance may suffice.77

264. It is not lawful to divide a parish merely because of

the great number ot parishioners; for in this case the pastor

can only be compelled by the bishop to take as many assist-

tant priests as shall be needed to supply the wants of the

parish.78

IJjgr 265. We say, second, which must be expressly stated ;

in other words, the bishop is obliged to inform both the

chapter and the rector of the parish to be divided, and others

interested, of the specific cause on account of which he

wishes to divide theparish,

so that it

maybe seen whether

the proposed division is justified by sufficient reasons, and

to enable the rector to appeal, if he wishes."

We say, third, verified ; for, as Lotterus80

and canonists

in general say, the mere assertion of the bishop that there is

a sufficient cause for the proposed division is of no value.

The existence of the cause must be positively proved by a pre

vious investigation. This inquiry is to be conducted in ajuridical, though summary, not formal, manner. Thus it is

13Bouix, De Paroch., p. 259.

4Ib. pp. 250 and 258.

16Ferraris, V. Dismembratio, Novae additiones ex aliena manu., n. 12.

"

Ferraris V. Dismembratio, Novae additiones ex aliena manu., n. 13."

Bouix, 1. c., pp. 264, 265.

8Craiss., n. 344; cfr. Cone. Trid., sess. xxi., c. 4, de Ref.

19 Lotterus, De Re Benef., 1. i, q. 28, n. 24; Leur., 1. c., q. 951.*

L. c., n. 33.



iiS Manner of Acquiring

sufficient for the bishop to go to and inspect the place or

parish to be divided. But the entire investigation and its

results must be written down and put on public record, so

that there will be legal proof of the existence of a sufficient

cause. The reason is that the division of a parish is regard

ed as a true alienation of ecclesiastical property, and is there

fore forbidden by law except where thereis

sufficient cause.

Now, when the law forbids a thing to be done except for

sufficient cause, the existence of such cause must be proved

ex actis, i.e., from the authentic and public records of the

inquiry.81

It will be seen that this verification is made in a.

simple and summary, though judicial, manner; that conse

quently the rector is to be cited and heard juridically, etc.

We say, fourth, with the advice of the rector, etc. ; that is,

the rector, owing to the loss or damage he is about to sus

tain by the proposed division, and because it is of public in

terest that churches should not be impoverished or crippled

by divisions, must be summoned in order that he may give

his opinion on the proposed division, and in general explain

his reasons, if he have any, for being opposed to the division.

This summoning of the rector is obligatory on pain of the

nullity of the division. Yet the bishop, though bound, on

pain of nullity, to listen to the rector s objections, and to ask

his opinion or advice, is not obliged to follow this advice,

and therefore may decree the division, even against the will

of the rector and notwithstanding the latter s objections.

But if the bishop does so, the rector has a right to

appeal,though only in dei olutii o, either to the Metropolitan or

the Holy See. And if, upon appeal being made, the bishop

does not prove the existence of a sufficient, cause, or if the

appellant shows that the requisite formalities (solemnitates\

have not been observed, the division will be annulled, li

should be observed that not only the rector, but also the

81Leur., For. Benef., p. 3, q 951; Card, de Luca, De Benef., disc. 45. n. 6-




parishioners of the parish to be divided, and others inter

ested, can appeal against the division;for their interest is at

stake, and therefore thev can appeal.

We say, fifth, with the consent of the cathedral cliapter.

This will be more fully explained further, when we come to

treat of diocesan consnltors.

We say, sixth, the limits of the new parish must be fixed ;

in other words, the bishop must fix the limits of the new

parish, either by assigning- it a certain district or at least

certain families.

We say, seventh, a competent means of support should be

assigned the new parish1

This should be done with as little

prejudice to the mother-church as possible. Hence the

bishop can, and should if need be, compel the parishioners

of the new church to contribute as much as is necessary

for the support of the rector, and the repairs and main

tenance of the church/3 He may also, especially where the

parishioners of the new church are poor and the mother-

church is very rich, assign part of the income of the mother-

church to the new parish/4

We say, eighth, the parish to be divided must not be crippled

by the division. Thus Pope Alexander III., in his celebrated

constitution Ad audientiam, which was renewed by the Coun

cil of Trent,8

distinctly lays down the law that a parish can

be divided only when its income issufficiently large to meet

all its expenses, without the help of the portion or district

which is to be taken from it

bythe division/

6

Infact,

it is

an axiom of law that it is not lawful to uncover one altar in

order to cover another" Non licet discooperire nnum altare,

ut alterum coopenatur" (Reiff. 1. iii. t. 5. n. 101.)

**Cap. Ad audientiam, cit.; Cone. Trid., sess. xxi., c. iv., De Ref.

83Leuren., For. Benef., p. r, q. 159, n i; Card, de Luca, De Decim., disc.

12, n. 8.84 Cone. Trid., sess. xxi.. c. iv.. De Ref.; Leuren., 1. c., n. i.

85 Sess. xxi., c. iv. , De Ref.

86Arg Cap. Vacante, xxvi., De praeb. Ciii.. 5), Leuren., 1 c., q. 158, n. 5.



I2O Manner of Acquiring

Ninth, the new church or parish must consider herself

as the daughter filia and the old church as the mother-

church ccclcsia matrix, and in consequence pay her annu

ally a certain sum of money or tribute, to be fixed by the

bishop as a sign of respect anddependence."

Tenth, the jus patronatns, or the right to present the rec

tor of the new parish, must be reserved to the rector of the

mother-church, as a sort of compensation for the loss sus

tained by the division.88

However, according to some canon

ists, v.g., Lotterus, Corradus, this right is reserved to the

mother-church only when it has contributed somethino-&toward the endowment or support of the new parish, but

not otherwise/9

266. It would seem that, strictly speaking, these con

ditions and formalities must be observed, on pain of nul

lity of the division, only when there is question of the divi

sion of canonical parishes. Now, parishes in the United

States, save, perhaps, certain parishes in the province of

San Francisco,90

are all regarded without exception as mis

sions or quasi-parishes, and not as canonical parishes,

even where their rectors are irremovable.61 The same holds

true of England,9 2

and, in general, of all missionary countries.

Hence, in the division of parishes, or rather missions, here

and in England, and in general in missionary countries, the

bishop may laudably indeed comply with the above con

ditions and formalities as far as practicable, but yet he is

not

obligedto do

so,under

painof

nullity,save in so far as

these conditions are based upon equity and natural justice, or

are imposed by statutory law, that is, by special or local law.

61

Cap. Ad audientiam, de Eccl. aedif. (iii. 48); Phillips, Kirchenr., vol. vii...

p. 291; Leur., 1. c., n. 7 ; Lott., 1. c., n. 46.

88Cap. Ad audientiam. cit.

; Phillips, Kirchenr.. vol. vii., p. 291.89

Leuren., 1. c., q. 157, n. 6; Lotterus, De Re Benef., 1. i, q. 28, n. 46.

90Infra, n. 654 ;

Cone. Prov. S. Francisci I., Decret. XVI.91 Cone. PI. Bait. III., n. 24.

92 Leo XIII., Const. Romanes Pontiftces, 1881, Prof cto.



Jurisdutio Ordinaria. 1 2 1

fl^jT" 267. Application of the Above Principles to the U. S.

We have just said, save when these conditions are imposed by

statutory law. Now, what is our statutory law in this mat

ter? The TJiird Plenary Council of Baltimore, recognized

by the Holy See, Sept. 21, 1885, enacts that when parishes

are divided, even though they have irremovable rectors,

the new parish or mission will be independent of the mother-

church.93

Herein our statutory law differs from the gen

eral law, which, as we have seen, preserve a certain de

pendence of the daughter-church upon the mother-church.

Next, the TJiird Plenary Council decrees that our missions

or parishes, whether they have irremovable or only simple

rectors, can be divided only with the advice of the consul-

tors, and also with the advice of the rector of the mission

which is to be divided.94

These two conditions necessarily

imply nearly all the formalities required for the division

of canonical parishes enumerated above. For the previous

advice of the consultors and rector is prescribed in law, in

order that it may be seen whether there is a cause for the

division, whether it is sufficient, whether it is properly es

tablished, whether the mother church is not unduly crippled

by the division, etc.

268. Q. Is it allowed to appeal against the division of

canonical parishes ?

A. According to the o^neral law of the Church, as in full

force at present ail Jver the world, it is always lawful

for theparish priest, parishioners,

and others interested, to

appeal, though only in devolutivo, against the action of the

bishop ordering a parish to be divided, and that whether he

proceeds as Ordinary or as delegate of the Holy See. This

is proved from the Const. Ad Militantis of Pope Benedict

XIV., which enumerates among the cases where adevolutive

appeal is permitted the following, under Article XL :

"

Item

; Cone. PI. Bait. III., n. 34.

MIb. n. 20.



122 Manner of Acquiring

a decretis seu mandatis per quae Episcopi, etiam uti Apos-tolicae Sedis Delegati . . . etiam invitis Rectoribus, pro-

cedant ad constitutionem novarum Parochiarum . . . ubi ob

locorum distantiam, sive difficultatem, Parochiani, sine

magno incommode, ad percipienda sacramenta, et divina

officia audienda accedcre nonpossunt."

95

Q.Is it

permitted to appeal against the division of missions or quasi-canonical parishes, with us, in England, Scot

land, and other missionary countries ?

A. It is, and that whether the bishop proceeds as Ordi

nary or as delegate of the Holy See. This is evident from

the fact that the Const. Ad Militantis, which gives the right

of appeal against the division of parishes, as we have just seen,

has been expressly made obligator} in the United States, bythe S. C. cle Prop. Fide, in its Instr. Cum Magnopere, art. xxxvi.

The words of the S. C. de Prop. Fide are:"

In appellatione

observentur normae expressae in Const. Sa. Me. Benedict

XIV. Ad Militantis, diei 30 Martii1/42."

It is also proved from the Const. RomanesPontifices of

Pope Leo XIII., as authenticallv interpreted by the S. C. de

Prop. Fide, at our humble request. The words of the Su

preme Pontiff, in the said Const. Romanos Pontifices, which is

now obligatory also in this country, are :

"

Respondemus :

licere Episcopis Missiones dividere . . . Quo melius an tern

mission quae dividenda sit, ejusque administris prospiciatur,

volumus ac praecipimus ut sententia quoque rectoris ex-

quiratur, quod jam accepimus laudabiliter esse in more

positum ; quod si a religiosis sodalibus missio administre-

tur, Praefectus Ordinis audiatur : salvo jure appellandi, si res

postulet, a decrcto cpiscopali ad Sanctam Sedcm in devolutivo

tantum."

It is certain, therefore, that all our missionary rectors,

secular and regular, movable and irremovable, have the

95Cf. Bouix de Paroch., p. 280.



Jurisdictio Ordinaria. 1220.

right to appeal in devolutivo, against the action of the Ordi

nary dividing their missions or quasi-parishes.

We have said, in devolutivo. In other words, the

appeal does not stay or suspend the bishop s decree or

action dividing the parish or mission, but merely transfers

the whole case for adjudication to the judge of appeal,

whose right and dutyit is to

confirm, modify,or revoke the

bishop s decree.96

Uîf 269. Q. To whom is the appeal to be made ?

A. 1. A distinction is to be drawn between the division

of exempted and that of non-exempted parishes (with us,

missions or quasi-parishes).97 When the bishop divides ex

empted parishes or missions, that is, parishes or missions

which are under the control of regulars who enjoy the

privilege of exemption, the appeal cannot be made to the

metropolitan, but must necessarily be made directly to the

Holy See.a The reason is that exempted regulars are sub

ject,not to the bishop, but directly to the Holy See. Con

sequently the bishop can divide their parishes or missions,

not bv his ordinary power, but only by Papal delegation, as

conferred upon him by law, that is, by the Council of Trent6

Now it is a principle of canon law that an appeal must

always be interposed from the superior delegated to the

superior delegating, and from the lower to the higher au

thority, but not from the higher to the lower. But the

bishop, in the case, acts as delegate of the Pope, and is

therefore, as such, not inferior to the metropolitan.

2. But when the bishop divides non-exempted parishes

or missions, that is, parishes or missions in charge of secular

Priests, or also of religious communities which do not enjoy

the privilege of exemption, the appeal can be interposed to

96 Bouix, De Paroch, p. 280.

97 Leur. for. Ben., p. 3. q. 959.

aFagnan. ad cap. 3 de Eccl. aedif., n. 45, 49.

b Cone. Trid., sess. 21, c. 4, De Ref.



Manner of Acquiring

the metropolitan, or of course also directly to the HolySee,

c and that even though the bishop proceeds as delegatesedis apostolicae* For, in the case, the bishop can proceedboth by virtue of his ordinary jurisdiction and as delegateof the Holy See. Now in all cases where he can act in

virtue of this twofold authority, the Papal delegation or the

power delegated bythe

Holy See has for its object merelyto assist and to strengthen the ordinary jurisdiction of the

bishop, but not to supersede it, or to impair the general law

of the Church, either in regard to appeals or any other

matter. 6 Here it may be observed that the bishop is author-

ized by law, v.g., by the Council of Trent, to act as delegateof the Holy See, either with regard to the

(a) secular clergy

or also non-exempted religious, (b) or exempted regulars.In the latter case, he can act solely by Papal authority ;

in

the former, he can proceed both by his ordinary and also by

Papal authority.

\

ART. IV.

The Erection of Parishes per viam Unionis.

270. A parish is established per viam unionis when several

parishes&

are united into one so as to form, under a certain

aspect, a new parish.8 Now, parishes or benefices are united

chiefly in three ways: per aeqiialitatem, per subjectionem, and

per confusionem. I. The unio per aequalitatem or unto aeque

principalis effects no

changewhatever in the status of the

parishes thus united,9

&

save that they are governed by one

c S. C. EE. et RR., 16 Oct., 1600, decretum ad tolle^das, vii.

dStremler, Des Peines Eccl p. 445

e De Brab., vol. ii., p. 440.

Bouix, 1. c., p. 244.

* Cfr. Craiss., n. 337.

98Cfr. Phillips, Kirchenr., vol vii.,

p. 320.99Ferr. V. Unio Benef., n. i.




and the same pastor.100

It may, in a certain sense, be said

that, in the United States, churches or congregations are

not unfrequently united in this manner;for there are many

instances where two or three congregations, though ad

ministered by one and the same pastor, are, nevertheless, in

everything else independent one of the other; hence, too,

the accounts of each of these parishes are kept separate bythe pastor.

271. 2. The "

unto per subjectionem"

(also unio accessoria,

unio plenaria "")

is effected"

quum una ecclesia alteri ec-

clesiae conjungitur, eique tanquam accessorium principali

subjicitur."

loa

Churches thus united lose their name or title,

and their revenues are transferred to the church to which

they are annexed. 103 Small out-missions in the United States,

where churches are built, may in a measure be said to be

thus united to the principal church where the pastor

resides.

272. 3. The unio per confusionem (imio translativa, unio

txtinctiva104

)occurs

"

quum suppressis titulis duarum aut

plurium ecclesiarum, nova inde ecclesia creatur, ut si ex

duabus ecclesiis parochialibus, quorum reditus valde tenues

sint, una tertia ecclesia parochialis, eaque novo titulo

erigatur."

105

273. These three kinds of unions can be made use of only

when parishes are united to other parishes or benefices with

the care of souls, but not when parishes are to be united

with an ecclesiastical

corporation, v.g.,

a

chapter, monastery,college, and the like

;unions in the latter case are made dif

ferently.106

274. Q. Who has power to unite benefices and

churches?

A. i. Only the Pope can unite bishoprics. He can,

100

Phillips, Lehrb., p. 140.OI

Cfr. Phillips, Kirchenr., vol. vii., p. 322.

109Soglia, 1. c., p. 157.

3 Ib. 104 Cfr. Phillips, 1. c., p. 323.

mSoslia, 1. c.

8

Soglia, 1. c., p. 158 : efr. Phill., Lehrb. p. 141



1 2 A. Manner of Acquiring

moreover, unite all"

7

other kinds of benefices. 2. The

bishop can, for legitimate causes, unite benefices and

churches in his diocese. An archbishop, however,108

cannot

unite benefices in the dioceses of his suffragans. 3. The

chapter, sedc109

vacante, and hence the capitular vicar (with

us, the administrator), can unite those benefices and

churches which the bishop can unite. 4. The vicar-general,

however, has110

no power to unite benefices, save when spe

cially commissioned to that effect by the bishop.

-75- Q- What conditions are required in order that

parishes may be lawfully consolidated or united by the

bishop ?

A. According to the common opinion of canonists, three

conditions are essential : i, a just cause, v.g., if the parishes

are too poor to support separate1 "

pastors; 2, citation or

summoning of all the parties interested, as explained in the

caso of the division of parishes; 3, the consent112

of the

cathedral chapter ;the consent of the people or faithful of

the parishes to be united is not required.113

.t/6. Q. Has the power of uniting parishes and bene-

ficen, vested in bishops by the jus commune, been restricted

by 1he Council of Trent ?

A. We said above that bishops, by virtue of the jus com.,

have power to unite parishes and benefices situate in their

dioceses; they can, moreover, according to the Council

of Trent, make these unions not only in their capacity of

Ordinaries, but also as

delcgati

S. Sedis, and even

though

the

parishes to be united are reserved to the Holy See.114

This

power of bishops to unite parishes is, however, not without

restrictions.115

Thus,

107

Reiff., lib. iii., tit. 12, n. 53.108

Craiss., n. 360.**

lt>

110Ferraris, V. Unio Bencf.

,n. 13.

UISoglia, vol. ii., p. 159.

mBouix, De Paroch., p. 285.

113

Reiff., 1. c., n. 76

114 Bouix, De Paroch., pp. 286, 287.

116Cfr Phillips, Kirchenr . vol. vii

, p. 325, seq.




277. i. A bishop can unite parishes only with othei

ft,arishes, but not

11

with monasteries, abbeys, hospitals,1 "

colleges, and the like.

2-g. 2. A parish in one diocese cannot be united by the

bishop to a parish in another diocese, lest the same parish

should become subject to two different bishops."

9

In the

United States it sometimes happens v.g., near the confines

of two dioceses that a church or congregation in one dio

cese is attended by a priest of another diocese living near

the confines or boundaries of the two dioceses, and having

"faculties"from each ol the respective bisnops. This union

of congregations belonging to two different dioceses is not.

strictly speaking, unlawful in this country, because our

parishes are missions rather than canonical parishes or bene

fices, to which alone the above Tridentine restriction applies.

We say, strictly speaking ; because these unions, unless neces

sary, seem to be opposed to the spirit of the Tridentine decree.

279. 3. Again, bishops can unite parishes only perma

nently, but not temporarily, v.g.,for the lifetime"

3

of the in

cumbent. To understand this better, we must remember

that the union of parishes is of two kinds : one is permanent

(unio perpetua),the other is but temporary (unio temporalis}.

A union is permanent"

quando exprimitur ut perpetuo

iuret"

;that union is temporary, on the other hand.

"

quae

fit ad tempus, v.g.,ad vitam ejus cui conceditur."

280. We sr.id above that bishops can make unioncs pcr-

petnas only.From this it must not be inferred, however,

that when parishes are once united by bishops they cannot

again be disunited by them. For, though the unio of

parishes, as made by a bishop, should be unio perpetua, it

need not on that account be"

unio indissolubilis

u<

Reiff., lib. Hi., tit. 12, n. 61.

"

Soglia, vol. ii., p. iGo;

cfr. Cone. Trid., sess. xxiv., c. xiii., d. R.

118Ib.

;cfr. Cone. Trid., sess. xiv., c. ix., d. R.

"

9 Reiff., 1. c., n. $a

"

Ib.. n 38, 37-





CHAPTER VTI.

ON APPOINTMENTS TO ECCLESIASTICAL OFFICES OR BENE.

FICES (DE INSTITUTIONS CANONICA).

ART. I.

Of Appointments in General (de institutions canonica in

genere].

283. By the conferring of an ecclesiastical office (institu-

tio, concessio^ collatio, provisio, donatid) we here mean the ap

pointment to a vacant ecclesiastical office of whatsoever

kind,1 made in a lawful manner, by authority of the proper

ecclesiastical3

superior. The word institutio is, in a broad

sense, usually applied to any canonical appointment what

ever;

*

in a strict sense, only to appointments where the per

son to be appointed is designated by the patronus* i.e., the

person vested with the jus patronatus and where, conse

quently, the ecclesiastical superior confers the office, but

does not designate the personb

upon whom it is to be con

ferred.

284. That a person, in order to hold or fill an ecclesiasti

cal office, must be properly or canonically appointed to it, is

proved from the Sacred Scriptures, the Council of Trent,1

and canon law.*

285. The conferring of or appointment to an ecclesiasti

cal office, being an act by which ecclesiastical rights and

Craiss., n. 370.&


Craiss., n. 370.4Ib.

;cfr. Devoti, lib. i., tit. v., lect. iv., 47

Phillips, 1. c., p. 144.6

Jo. x. i, Epist. ad Hebr. v. 4.

Sess. xxiii., can. 7.*Cfr. Craiss., n 371.



X28 On Appointments to

offices are bestowed, and being therefore an exercise of

spiritual authority, can*

be made only by ecclesiastical supe-

"iors i.e., the prelates of the Church not by lay persons.

Kings, it is true, have sometimes been empowered by Popes

to confer ecclesiastical benefices;but this was only by

I0

special privilege. Lay persons cannot, as such, confer eccle

siastical offices.

286. From this it follows : i. Investitures in the Middle

Ages were deservedly condemned"

by Popes Gregory VII.

and Callistus II. 2. In like manner, Pope Innocent XI. was

very justly indignant at the concession made by the French

bishops in 1681, by which the King of France was to be al

lowed"

to confer all those benefices of his kingdom to which

no jurisdiction was attached. 3. All those persons are to belooked upon as intruders who, being rejected,

13

even though

unjustly, by the proper ecclesiastical superior, have recourse

to the secular power to obtain, or rather invade, ecclesiasti

cal offices.

fSir3

287. Q. Can one who is elected, presented, or

nominated to a prelacy or bishopric enter upon its admin

istration under some title or other before he has obtained

and properly made known the bulls of confirmation from

the Holy See ?

A. We premise: It is necessarv to distinguish between

the case of one who is already the vicar-capitular (with

us, administrator) of the vacant diocese, at the time he is

nominated, presented, or recommended to the Holy See,

and one who is not the vicar-capitular with us, adminis

trator of the vacant diocese, at. the time he is presented to

the Holy See for the vacant see.

We now answer : I. In regard to the second case, namely,

of one who is not already vicar-capitular, it is certain that

9

Sogha, vol. ii., p. 166. 10Ib.

11 Craiss ., n. 372l -

Ib., n. 373.l3

Ib., n. 375.







Ecclesiastical Offices or Benefices. 131

elected may administer the diocese to which they were

elected even prior to obtaining the bulls of confirmation,25

si

si/it extra Italiam, atque id dcposcat dioecesis necessities aut

utilitas^ However, to this it may be retorted : i. It is a con

troverted question among canonists whether the decretal

Nihil was not entirely revoked by the subsequent decretals

Avaritiac andInjunctae.

and whether it is therefore of

anyforce at

present."

7

2. Even though we admit that the de

cretal Nihil is still in force, yet its provisions are applicable

to those appointees only who are outside of Italy and are

unanimously elected by chapters,"

but not to those who are

nominated or proposed by temporal rulers or presented by

the clergy and bishops in the United States. In any case,

therefore, the decretal Nihil relates merely to several dio

ceses of Germany, where alone bishops are still elected by

the canons of cathedral chapters.29

Whatever may be said,

it is certain that no priest in the United States, who has been

presented to the Holy See for a vacant bishopric, can assume

the administration of such diocese as bishop elect, before he

has received and exhibited vg., to the administrator of the

vacant see the Papal brief of his appointment.

290. II. We come now to the first case namely, of

the person who is already vicar-capitular or administrator

of the vacant see at the time he is commended or presented

to the Holy See for such diocese. We ask, therefore: Do

the above laws apply also to this first case ? In other words :

Can those who are already administrators of vacant dioceses,

also in the United States, at the time they are nominated or

presented to the Holy See for the vacant diocese, continue

to administer the vacant diocese for which they are nomi-

& 5 Cfr. Soglia, vol ii., p. 64,28

Ap. Bouix, 1. c., p. 271 seq.

"

Ap. Bouix, 1. c., p. 266. 28Ib., pp. 271, 272 ;

cfr. ib., p. 266.

29Bouix, 1. c., p. 266.



132 On Appointments to

nated, before they have received and exhibited their bulls

(with us, briefs or letters) of confirmation from Rome? 30

The question is controverted. De Angelis,31

Santi,32

and

others hold the affirmative, chiefly on the ground that the

above decretals ^z/drzVztfr and Injunctae, as confirmed uy PopePius IX., speak merely of those who attempt to enter upon

administration of the vacantsee,

but not ofthose who are

already in possession of the administration of the riocese at

the time they are proposed or nominated for it, and conse

quently not of the vicars-capitular or administrators in ques

tion.

291. Reiffenstuela and others maintain the negative, prin

cipally because the above decretals do not expressly make

any distinction whatever between those who are vicars-ca

pitular and administrators at the time of their nomination,

and others who are not, but decree in general that no one

who is presented for the vacant see shall engage in its ad

ministration before he has received and shown the apostolic

letters of confirmation.1*

292. Whatever may be said respecting the controversy, it

seems that as far as regards this country, Ireland, England,

and Canada, the affirmative opinion is the more probable.

For the presentation of candidates, as made in these countries,

is not an electio, nominatio, wrpraescntatio in the canonical sense

30 So far as concerns the United States, the brief or apostolic letters of con

firmation are usually sent by the Prefect of the S. C. de P. F. to the metro

politan of the province comprising the vacant see. and by him to the bishop

elect.3I

Prael., lib. i., t. 5 and 6, n. 13 ; id., lib. v.. tit. 28, n. 23.

8* Lib. i., t. 28, n. 68. a Lib. i., t. 6. n. 43.

b The Schema de Sed. Ep. vac., cap. i., of the Vatican Council proposed

to decide the question as against allowing administrators to continue the ad

ministration after their nomination. The words of the Schema are : "Si ipse

vicarius capitularius certum nuncium habuerit de sua electione, nominatione

seu praesentatione ad praedictam vacantem ecclesiam, eo ipso al> officio cesset, et

capitulum ad novi Vicarii ieputationem dereniat." Martin, Doc., p. 133; id..

Arbeiten. etc., p. 88.




of the term. To be elected, nominated, or presented, in the

true sense, the candidate should be either elected by the

chapter or nominated by the civil authority, not on a list of

three or more, but all alone. In the countries mentioned

the candidates will be three in number, none of whom will

know whether he is to be appointed by Rome. Should such

an uncertain presentation debar the administrator, whosename is on the list, from continuing in office, even thoughhe knows that he is on the list ? Moreover, according to

the universal practice prevalent here, in Ireland and England, administrators who are put on the list continue in office.

This practice is known at Rome, and yet has never been

reprobated.

HÎP To sum up: i. It is certain that with us, as else

where, no one who has been presented to the Holy See for

a vacant diocese can enter upon its a-, 1 ministration us bishop-

elect, or, as such, perform even the slightest act of jurisdic

tion, before he has received and shown the apostolic letters

of his appointment. 2. It is disputed whether candidates in

the United States, who are not already administrators of the

vacant see at the time they are recommended to the HolySee for it, can be appointed administrators after their com

mendation;but it appears more probable that they can con

tinue to act as administrators, in case they had been already

appointed as such, before their commendation.

293. Canonists, however, commonly teach that these

persons mayassume the administration of the diocese even

before they receive confirmation from Rome, especially in

two cases, i, when 53

this is done by special consent of the

Pope ; 2, or by virtue of privilege.34

Observe, that a bishop

elect cannot exercise ar.y act wliatevcr** of episcopal jurisdic

tion v.g.y make appointments, etc. before he has received

and exhibited the bulls of his appointment ;on the other

hand, he can assume the administration in full of his dioceseas soon as

vohe has shown the bulls of his appointment (in

33 Riff.. 1 i., tit. 6, n. 46.34

Ib., n. 47.

35Ib., n. 36.

36Craiss., Man. n. 385.



134 OH Appointments to

this country, v.g., to the bishop s council), even before he

has received consecration or taken possession of his see

(possessionis assumptio, inthromzatio*}.

He may exhibit the

bulls and take possession of his see either personally or by

proxy.3

294. Q. Should appointments to ecclesiastical offices

be made in writing?A. The appointment (imtitutio canonicd) is to be made

either by the Supreme Pontiff or it is made by bishops. In

the first case, it should be5i)

executed and given the ap

pointee in writing i.e., in formal and canonical letters of

appointment (litterac provisionis, litterae confirmations &

litterae

institntionis) ;in the second case namely, when persons are

appointed by bishops (v.g., to a parish) it does not appear

necessary40

for the validity of the appointment (ad valorem

institutwuis] that it should be in writing. When we say"

in

writing"we mean not an ordinary, even though official, let

ter from the bishop to the appointee, but a formal instru

ment,41

properly i.e., canonically drawn up, signed, sealed.

and delivered (litterae provisionis).We said above,

"

for the

validity of the appointment"

; for it seems that, at the present

day, appointments by bishops, in order to be lawful"should

be in writing ; this, however, holds, at least strictly speak

ing, only of appointments to canonically established offices or

parishes,but not, at least in the strict sense of the word, of

appointments in countries where there are no canonically

established offices or parishes. Our bishops make their

appointments to parishes and the like either verbally or by

ordinary letters, but not by formal instruments.

295. Finally, it is necessary for the exercise both oijuris-

diaio trdmaria and dclcgata that the person appointed should

at least implicitly accept the appointment.43

37

Phillips, Lchrb., p. 146.se

Craiss., n. 385.

M Craiss., n. 382.40

Ib., n. 383.41

Cfr. Soglia, Jus Privat. t. ii. ( p. 190,

aIb., p. 189.

4CraJss., n. 386.




ART. II.

Of Appointments to Ecclesiastical Offices in Particular OfElection, Postulation^ Presentation, and Collation.

296. In the

foregoing paragraphwe discoursed on

appointments in general ;

in the present, we shall briefly treat

of the various ways in which appointments to offices in the

Church are made. Ecclesiastical offices are conferred

chiefly in four ways: I, by election; 2, postulation ; 3, pre

sentation; 4, collation.

4 We shallbriefly explain each.

I. Election (electio).

297. By election(electid)

in a general sense is meant any

appointment whatever to ecclesiastical offices, whether it be

in the form of postulation, presentation, etc.45

By election,

in a strict sense, we mean a distinctive mode of filling eccle

siastical offices, or of making appointments, which is defined :

"

Electio est personae idoneae ad vacantem ecclesiam, per

eos quibus jus eligendi competit, canonica vocatio, auctori-

tate superioris confirmanda."40

At the present day none

out the following persons are, properly speaking, elected to

offices : the Roman Pontiff, regular prelates, capitular vicars,

and bishops in some parts of Germany.47

298. Elections may be held in one of these three ways

only: I, per quasi inspirationem ; 2, per compromissum ; 3, per

scrutinium. Let us explain these forms.4

299. First, an election is held in the form of quasi inspira

tion (eleciio per quasi inspirationeni), when all those who are

entitled to vote, without even a single49

exception, and with-

44

Soglia, vol. ii., p. 165 ; cfr. Craiss.. n. 387.4S

Reiff, lib. i., tit. vi., n, 3.

48

Reiff., 1. c., n. 4.4r

Craiss., n. 388.

48 Cap Quia propter 42, De Electionc, issued by the Fourth Lateran C. in

1275 ; cfr. Craiss, n. 389.&

Phillips, Kirchenr.. vol. v., p. 852.



On Appointments to

out any special previous arrangement, choose by acclama

tion, and, so to say, withro

one heart and mouth, some

person to fill an office. We say,"

without any previous ar

rangement"

(nullo praecedente tractatu} ;for the electors must,

so to say, at the mere mention of the name of the candidate,

unanimous ) proclaim him as their choice for the office;

this sort of election, therefore, must be spontaneous, not

preconcerted. Any previous arrangement as to the person

to be elected, and all influence brought to bear in his favor,

are excluded from this mode of election.61

300. Second, an election takes place in the form of compro-.

mise (electio per coinpromissuvi],"

quando capitulares prae-

sentes facultatem eligendi in unum vel plures idoneos viros

conferunt, qui vice omnium eligant." The persons thus

selected to perform the election (compromissarii} need not

be63

members of the chapter; they must, however,5

be

ecclesiastics. The consent of all the vocals or persons en

titled to vote is indispensable to an absolute, but not to a

limited, compromise."

301. Third, the election by suffrage (electio per scrutinium}

is that"

quae praesentibus omnibus, qui debent, volunt, et

possunt interesse, fit per collectionem suftragiorum circa

eum in quern major et sanior pars capituli consentit."**

This form of election, ^herefore, consists in this, that each of

the voters casts his vote separately, either viva voce or

secretly namely, by ballot or ticket." Elections are usu

ally held in this manner58

i.e., by ballot.

302. The observance of one or the other of these three

forms of election is obligatory only in the election of pre

lates pro ecclesiis vidnatis that is, of bishopsMand irremov-

"

Phillips, Kirchenr., vol. v., p. 869.61

Ib.M

Reiff., 1. c., n. 68

"

Ib., n. 69.M

Ib., n. 70."

Ib., n 71-77.M

Ib.. n. 108

wPhillips, Kirchenr., vol. v., p. 876; cfr. Bouix, De Capit, p. 185; DP-

voti, lib. i., tit. v., n. 18.M

Phillips, Lehrb., p. 206.**

Reiff., 1, c., n. no.



Ecclesiastical Offices or Benefits. 137

abie abbots;6 1

in the election of inferior persons, v.g., of

canons, no particular manner of voting is"

prescribed ;all

that is necessary is that the canons, when capitulariy assem

bled, cast a majority of votes for the person to be chosen.

3O3 Q- Who are to be invited to take part in the elec

tion ?

A. All those who have the right of suffrage namely, all

those qui debent, volunt, ct possunt commode interetse. This

holds so strictly that if but one of these persons is not in

vited he may demand the annulment of the election, though

he must do so within six months. We said above that all

those are to be invited"

qui debent, volunt, ct commode possunt

interessc. We explain.

304. i. Qni debent : by which are excluded those who

by law are deprived of the right of suffrage, such as those

who are below the age of puberty (impuberes], or persons

not having the full use of reason," laymen, etc.64

305. 2. Qui volunt : because no account is to be made of

those who do not wish to be present at the election.651

Hence, in case all who are entitled by law to vote were pro

perly summoned, those who attend, though forming but a

small number of the entire body of electors, may yet lawfully

perform capitulary acts. In like manner, if, during the elec

tion, some electors should leave the place of election and re

fuse to return, the rest may proceed without them, provided,

however, the majority did not go away.66

306. 3. Qui possuntcommode interesse : since those who

are at too great a distance need not necessarily be called.*7

De rigore juris communis, those only are to be summoned

who are within theprovince." The custom, however, of a

p ace should be observed."

*

Reiff, 1. c., n. in. Ib., n. 112.M

Craiss., n. 394.

"

Ib. n. 395.M

Ib."

Reiffenst, lib. i., tit. vi., n. 117.

** Craisson, n. 396. Reiffenst., 1. c., n. 118.

&

Ib., lib. i,tit. vi., n. 118

; Craisson, n. 397, 398."

Ib., 1. C.



On Appointments to

307. Voting by proxy is admissible only when the voter

is legitimately absent71

and when this practice is sanctioned

by custom or local statute.71

Again, sick vocals or voters

who, though in the city or place where the election is held,

are yet unable to assemble in the place of election by reason

of infirmity, may cast their vote either by proxy or person

ally in their residence, when waited upon by those who are

deputed to collect the votes." Neither sick nor absent capi

tulars, however, can send their vote in writing, there beingan essential difference between the latter and voting by

proxy."Some authors, however, assert the contrary.

74

Blank ballots do not count.75

308. Q. How many electors must be present in order

to constitute a valid election ?

A. Two-thirds are required of those vocals or electors

only qui debent, volunt, et possunt commode intcresse. Hence, in

default or non-appearance of the rest, even three, or two, or

one capitular may perform the election, making the nomina

tion before a notary and witnesses.7 &

309. Q. How many votes are requisite to a valid election

or capitulary act ?

A. Ordinarily, it is not essential that all the electors

actually present should consent;but the vote of the majority

of those who are present is sufficient, provided all those whohave a right to be present were canonically called or in

vited.77

Thus, if thirteen took part in the election, seven

will constitute amajority.

7

We say ordinarily, for in certain cases a majority vote is insufficient. Thus, in the elec

tion of Sovereign Pontiff, the suffrage of two-thirds of the

*

Ceccoperius, lib. iv., tit. iii.; ap. Bouix, De Capit., pp. 181, 182, edit.

1862.nMonacelli, ap. Bouix, De Capit., p. 182

72

Reiffenst., 1. c., n. 192.rs

Ib., n. 194 ;cfr. Bouix, De Cap., p. 182.

74 A p. Reiffenst., 1. c., n. 196."

Reiffenst., 1. c., n. 203.7S

Ceccoperius, ap. Bouix, De Capit., p. 166"

Bouix, De Capit., pp. 169, 168;

cfr. Reiifenst-, lib. i, tit. vi., n. 145

78Reiffenst., 1. c., n. 189.



Ecclesiastical Offices orBenefices. 139

cardinals present at the election isindispensable."

Other

exceptions may be seen in Bouix.80

310. According to canon law, the vote not only of the

pars major, but also that of the pars sanior, is requisite. It

is commonly, however, held that the majority, or the pars

major, is also the pars sanior, unless the contrary be

proven.M

311. Q. What else is prescribed relative to elections?

A. i. The election should take place within three months

from the day of the vacancy. 2. It must be free. 3. No

simony should intervene. 4. The votes, as cast, should be

absolute and determinate, not32

uncertain or conditioned.

5. Once the result is published i.e., the vote announced

(pubticato scrutinid) the" voters cannot, as a rule, change

their vote (iwn possunt electores amplius variare). We say,"

as a rule" ; for there are several exceptions.84

Amongothers, a peculiar exception is made in favor of the elections

of nuns : when, namely, one of their number is elected, v.g.,

abbess, by a majority, but not by a two-thirds vote,85

the

nuns

composingthe

minority may goover

(accessus)

to the

majority, and thus change their vote, even"" after the publi

cation of the votes. 6. It is not generally prescribed,

though it is advisable, that the votes*

should be cast

secretly. We say, "generally"; for, in the election of supe

riors of regulars, and of superioresses88

of nuns, nay, in the

election of all officials whatever of religious of both sexes,

the voting must be secret, otherwise the election is null, eventhough but one of the voters should, with the permission of

the chapter,89

make known his vote, v.g., by attempting to

vote viva voce, or by telling his vote to another capitular.

"

Bouix, De Cap., p. 170.80

L. c., p. 170.

1

Reiffenst., 1. c., n. 143 ;cfr. Craisson, n. 404.

MCraiss., n. 406.

83

Cap. Publicato 58, De Elect.~ 4

Reiflf., lib. i., tit. vi., n. 290-300.

* C. Indcmnitatibus 43, Sane, De Elect, in 6.&

Reift., 1. c., n. 300*

Craiss., n. 409S8

Reiff., 1. c., n. 328-351.e9

Ib., n. 345.




The Council of Trent enacted this law in order that no en-

mities might be occasioned00

among the religious by elec

tions. Hence, the religious are bound to preserve secrecyas to their vote, even after the election, though a violation

of this secrecy, at that time, does not91

annul the election.

7. Elections cannot take place by lot (per sortem], except,

perhaps, whenthe

votes are equally divided between two

9 *

candidates, after the second or third ballot.

312. Q. What are the chief things to be done after the

election ?

A. i. When the election is over, a decree is drawnup.

and signed by the voters ; then all power to change the

vote is cut off. 2. The person elected should be notified of

his election within eight days, and his consent rhust be

given within83

a month. 3. A bishop elect must receive

consecration within three months from the day on which he

was notified of his confirmation. No regular can consent

to his election for a prelature out of the monastery without

permission from his superior ;otherwise the election is, ipso

facto, null and void.94

2. Postulation (postulatio).

313. Chapters who may still have the right (v.g., in some

parts of Germany) to elect bishops, may sometimes wish to

choose a person as bishop who, though otherwise com

petent, is nevertheless ineligible by reason of some canonical

impediment, v.g., for want of the requisite age,95or if he is

already a bishop. In this case the canons cannot, strictly

speaking, elect such person, but merely request (postulatio

solemnis, petitio, supplicatio) the Holy See that he be ap

pointed. This petition (postulatio solemnis} must be ad

dressed to the Holy See in a canonical manner. Hence, i,

a majority of the chapter should, generally by vote (per

80

Reiff., 1. c., n. 343.

"

Craiss., n. 409.w

Ib., n. 410. Ib., n. 411.M

Craiss., n. 413.9B

Soglia, vol.ii., p. 65




scrutiniuni), concur in9B

the request ; 2, only the electors

i.e., those who have the right of suffrage97

can vote for the

petition to be addressed to the Holy See; 3, the petition

must state the impediments"

8

affecting the person whose ap

pointment is requested ; 4, the impediments themselves

must bedispensable." Once the canons have signed the

petition and presented it to the Holy See, they are no longer

free100

to change the request or postulation. This kind of

postulation (postulatio solemnis) seems to have gone out of

use; for, as Devoti

""

says,"

hodie generatim omnes, quibus

vel aetas, vel quidvis aliud impedimento est, quominus eligi

possint, a sede apostolica veniam, sive indultum eligibilitatis

impetrare solent."

314. Ecclesiastics of one church or diocese may be

elected to some dignity in another church or diocese, with

the permission, however, of their superiors {postulatio sim

plex}^

3. Presentation, Nomination (praesentatio, nominatio).

315. I. Presentation (praesentatid) as here taken, is de

fined:

*

Personae ad Episcopum vel alium cui competit insti-

tutio, per patronum legitime facta exhibitio, ut ei de beneficio

vacante provideat."Here the presentation must be dis

tinguished from the appointment. The person whom the

patronus wishes to have appointed can only be designated

or presented by him;the appointment (collatio non libera, in-

stitutio) itself belongs to the bishop, though it cannot be

withheld104

except for canonical reasons. No jus patronatus

or right of presentation exists in the United States.

316. II. Nomination (nominatio solemnis) is the act by

which two or more worthy persons are proposed to the

*"

Ferraris, V. Postulatio, n. 27."

Ib., n. 6.& 8

Ib., 1. c., n.9.

99Ib., n. 8.

I0

Ib., n. 17.""

Lib. i.,tit. v., n. 27.

188

Ferraris,1.

c., n. 16.

1M

Reiff., lib. i., tit. vi., n. 18.M Our Notes, p. 121.




superior, in order that he may appoint one of them to the

vacant office.105 When a bishopric falls vacant in the United

States, three candidates are proposed to the Holy See by the

Consultors and the irremovable Rectors of the vacant dio

cese and by the bishops of the province. This presentation

seems to partake somewhat of the character of nomination.106

4. Collation or Appointment Proper (collatio].

317. Thus far we have used the word appointment (con-

cessw, collatio) in a general sense, and applied it to ever}1 form

or mode of conferring ecclesiastical offices. We shall now

examine what is meant by the power of appointment in the

strict sense of the term.

318. An appointment (collatio) proper differs from an

election (electio) chiefly in these two ways: I. The appoint

ment confers upon the107

appointee the office itself (jus in

*re) ;an election gives but a claim to the office (jus ad rein).

A person, by being elected, is not thereby appointed, but

merely receives the right to be appointed to an office. An

election, therefore,

maybe termed an inchoate and

imperfectappointment. The same difference exists between appoint

ments and presentations or nominations. 2. Again, an ap

pointment proper is made by one person only ;while an

election consists essentially of the votes of a number of

persons.10 &

319. From the above it will be seen that, by an appoint

ment,the full title to

the office is vested in the personappointed, who, in fact, becomes, so to say, the owner of the

office.109

320. Now, an appointment is termed collatio libera when

the collator or appointer not only has the right to appoint

1(*Rciff., 1. c

,n. 10. Cfr. Craiss., n. 416

mReiff.,

lib.i.,

tit.vi.,

n.25 ; cfr. Phillips, vol. vii., p. 489, seq.K*

Devoti, lib. i., t. v. sect. ii., n. 28& 9

Cfr. Sog ia. torn, ii, p. 165.




but also to designate""

or nominate the person he wishes to

appoint ;this appointment is named collatio libera because

the appointer is at liberty to appoint111

any person he

chooses. On the other hand, an appointment is called colla

tio non libera, necessaria, when the appointment itself be

longs11S

to one person, and the designation or nomination

of the party to be appointed to another. The appointment

in this case is termed collatio necessaria, non libera, because

the appointer cannot refuse to appoint the person designated

or presented to him for appointment unless canonical ob

stacles forbid the appointment.

321. We shall subjoin a few words relative to the mode

of appointment of bishops at the present day. It is certain

that the

appointmentthat is, not

onlythe

confirmation,but

also the election of bishops is now reserved exclusively11

to the Roman Pontiff, save in some parts of Germany,

where, by virtue of concordats, bishops are still elected by

chapters.114

322. The manner in which the Holy See now appoints

bishops is this :

i. The appointment is made by the Pope, as a rule, in

ordinary115

or secret consistory. We say, as a rule ; for the

bishops of the United States, and of missionary countries in

general, are not appointed in consistory, but by papal brief.116

323. 2. The appointment itself is preceded by an

investigation ( proccssus informationis, processus inquisitionis],

which is instituted in order to ascertain whether the person

to117

be appointed possesses the necessary qualifications.

When the candidate lives in Italy this118

process of investi-

110Reiff., i. c., n. 24.

"

Phillips, Lehrb.. p. 142, 77.

112Ib., 78, p. 144 ;

cfr. ib., Kirchenr., vol. vii., p. 485.

113Bouix, De Episc., vol. i., pp. 205, 206.

114Ferraris, V. Episcopus, art. ii., n. 15.

115Phillips, vol. vi., 321, pp. 579, 580.

116Ib.,

321, p. 579,

and330, p. 670

;cfr.

Bouix,De

Episc.,vol. i.,

p. 232.111

Phillips. Lehrb., 154, p. 303. mSoglia, vol. ii., p. 63, 39.



144 @n Appointments to

gation is conducted in Rome;

if he resides out of Italy, it is

made either by the apostolic nuncio or some other bishop

specially commissioned" 9

by the Roman Pontiff to that

effect. The result of this investigation is then sent to Rome

and submitted to a committee of cardinals (congregatio con-

sistorialis). This committee then examines (processus defini-

tivui)

thereport

submitted to it, and then decides whet he*

the Pontifical confirmation is to be12

given or refused.

324. 3. The confirmation, as given by the Pope in con

sistory, is couched in these words :

"

Auctoritate Dei omn?

potentis, Patris et Filii et Spiritus Sancti, et Beatissimoruni

Apostolorum Petri et Pauli, ac Nostra, Ecclesiam W. . . .

de persona W. . . . providemus ipsumque illi in episco-

pum praeficimus et pastorem;

curam et administrationem

ipsius, eidem in spiritualibus et temporalibus plenarie com-

mittendo."12

325. In the United States the bishops, either in proîn-

cial council or special meeting, discuss the qualifications

(processus informationis] of those whom the consultors and

the irremovable rectors have proposed or whom they them

selves wish to propose to the Holy See for vacant h shop-

rics:1 "

a statement or report of the acts of the mee:ing is

sent to the Propaganda.123

The bishops of the United States,

and of missionary countries in general, are appointed by the

Pope mainly on the recommendation of the Propaganda.124

326. 4. After the promotion, in consistory or otherwise

bulls are sent to the bishop elect, to the consecrator, metro

politan, clergy, and people of the: "

appointee.20 The bishop

elect is obliged to make the profession of faith, and to take

the oath of obedience andfidelity to the Roman Pontiff: ?f

119Cfr. Bouix, De Episc., vol. i., p. 215.

12

Phillips, 1. c.

mAp. Craiss., n. 420. "Cone. PI. Bait. II., n. 106.

mCfr. our Notes, pp. 95, 99.

124

Phillips, 1. c.m

Craiss., n. 420.

128 The Propaganda, in appointing bishops for the United States, sends

briefs, not to the clergy or people, but merely to the bishop elect, and that

through the metropolitan.




out of Rome, he must take this oath in the hands of the con

...-crator&

7

(y, p. 520).

327. In regard to this whole matter, Bouixs

very pro

perly remarks that modern canonists need no longer weary

themselves with the study ot complex and involved ques

tions as to the election and postulation of bishops, for the

simple reason that the Holy Seehas

almost everywhere deprived cathedral chapters and all other parties of the right

to elect bishops.

ART. III.

On the Manner of Electing the Sovereign Pontiff.

328. We ask : What persons have, at various times, exer

cised the power to elect the Sovereign Pontiff? We reply:

I. At first i.e., from the time of St. Peter to Pope St. Syl

vester I. the right to elect the Roman Pontiff was vested

in the Senate of129

the Church of the city of Rome. This

Senate, which was instituted by St. Peter himself, was com

posed of twenty-four priests and deacons. 2. After the

pontificate of St. Sylvester I. (f 335), the entire Roman

clergy and people were1;1

also admitted to the election of

the Pontiff. 3. From the time of Pope Simplicius (ann.

07) to that of Zachary (ann. 741) temporal rulers sought to

establish the custom that no Pontiff should be acknowledged

as suchIMI

without their confirmation. 4. Pope Nicholas II.

was the first who gave the chief voice in the election of the

Roman Pontiff to the cardinals, by ordaining that the elec

tion should be held m by the cardinal bishops. 5. Finally

Pope Alexander III. (ann. 1178) reserved the right of elect

ing the Pontiff exclusively to the cardinals; he also"

enacted that the Pope could be validly elected by two-

thirds of all the cardinals present without any"4

regard

147

Craiss., n. 421.&

8 De Episc., vol. i., pp. 207, 208.

mFerraris,

V.Papa,

art.i.,

n.13.

13

>.,

n.14.

"

Craiss.,n.

422."*

Ferraris, 1. c., n.2<>, 36.

l33Ib n 21, 24, 36.

31Craiss . n. 423



i 46 Gn Appointments to

to the absent members of the Sacred College. These enact

ments were confirmedI3G

by Gregory X. (1274) and Clement

V. (1310), and are in force at the present day.

329. Q. Can the Pope elect his successor ?

A. The Pope is prohibited from electing his successor,

not only by ecclesiastical but also by divine and natural

law;and such election would be null and void.

136

Hence,

the Sovereign Pontiff could not, even with the consent of

the cardinals, validly issue a constitution authorizing a Popeto elect or appoint his successor

137

(infra, n. 457).

330. Q. What should precede the election of the Roman

Pontiff?

A. i. Immediately upon the death of a Pope the cardi

nals are to be convoked;

1Si

all must be

summoned,even

those who are absent, excommunicated, suspended, or inter

dicted;also cardinals but recently created, though not yet

invested with the insignia ofthe cardinalate. 2. The cardinals

present must ordinarily139

wait ten days for the arrival of those

who are absent. If, however, the cardinals present, for just

reasons, proceeded to elect the Pope before the lapse of ten

days from the day of the death of the late Pontiff, this election would nevertheless be valid.

140

3. On the tenth day, or,

according toPhillips,"

1

on the eleventh, the cardinals enter

the conclave in procession. None of the cardinals then in

Rome can, except in case of sickness, refusew

to enter the

conclave;those who arrive later must also be admitted.

14

Once assembled in conclave, they are not at liberty to leave

it before the election144

is over ; those who are compelled to

go, by reason of sickness or other just cause, do not. lose

the right14tp

to return, as Craisson146

erroneously asserts.

-Ferraris, 1. c., n. 22, 36.

136

Ib., V. Papa, art. i., n. i, 2.

"

Ib., 1. c., n. 12.iat

Craisson, n. 424.J39

Ib., 1. c., n. 424.

*l- erra is, V. Papa, art. i., n. 24.

"

Lehrb., pp. 205, 206,

*Ib., t,. 2rA "3

Ib.M4

Phillips, Kirchenr., vol. v P- 860

""

O>., v- 3C-2.M6 N. 424-




4, If, in the course of the election, a considerable numbe 1-o*

Cardinals should withdraw from the conclave, refusing to

Darticipate in the election, the right of electing the Pontiff

would devolve on the remaining cardinals, even though but

two;

14T

nay, even in case but one were left.48

331- Q- What is the present mode of electing the Sove

reign Pontiff?

A. i. The election must be held149

at present either per

scrutinium, or per comproviissum, or per quasi-inspirationem?**

Though any of these three modes can be made use of, the

scrntinium is the one more usually adopted.151

332. 2. The election per formam scrutini consists in this

that each of the voters casts his vote, as a rule, by ballot;

I5

in the election of the Sovereign Pontiff, the cardinals are

obliged to vote by sealed ballot.153 The candidate who re

ceives the votes of two-thirds of all the cardinals present in

the conclave"

is canonically elected Pope. Before the bal

loting, three cardinals (scrutatores] are chosen by lot to

count the votes and announce the result.1 1

333- 3- The votes are cast in this manner: Each cardi

nal writes the name of his candidate on the ballot or ticket

of election, formulating1 "

his vote thus :

"

Eligo in summum

Pontificem Reverendissimum Dominum meum Dominum

Cardinalem N. . . ." This ticket is then folded (compli-

catio schedularuni), sealed (pbsignatio schedularuw}, and de

posited by16

the voter in a chalice (positio schedulae in

caliceni) placed on an altar for that purpose.334. 4. The three scrutatores^ meanwhile,

168

stand by

the chalice and superintend the voting. When all the

147

Ferraris, V. Papa, art. i., n. 40.14a

Ib., n. 41,

149

Phillips, 1. c., p. 852 ;cfr. ib., Const. Aeterni Patris of Gregory XV.

1621-1623).16

Ferraris, V. Papa, art. i., n. 55-58.161

Phillips, Lehrb., 107, p. 206. Supra, n. 301.

1M Phillips, Kirchenr., vol. v., pp. 876, 877 M Ib. Ib.

*Ib., p. 877.

15eIb.. p. 878.

"

Ib., p. 879."*

Ib., p. 880.



148 On Appointments ti

votes have been cast, the scrutatorcs at once begin to an

nounce the votes {publicatio scmtimi} in this manner: the

first scrutator takes one of the votes out ot the chalice, an<J.

simply looks at or ascertains the name of the candidate voted

for;he then hands the vote or ticket to the second- scrutator,

who likewise, having merely seen the name on it, passes it

to the third scrutator, by whom the name is audibly announced to the cardinals. All the tickets are thus an

nounced one by one.16

335. 5. When all the votes have been counted by the

scrutatores, and it is found that the ballot is without result,

no candidate having received the requisite two-thirds vote,

the accessus must immediately begin."The c,cccssus consists

in this, that the cardinals, by balloting as before, go over to

one of the candidates who has received at least one vote in

the scrutinium or first ballot.101

In the accessus, as the word

itself indicates, no cardinal can vote for or go over to the

one for whom he voted in the scrutinium ;162

all, however,

are obliged to vote, though they are free to go over tolf"

some candidate or to stand by their first choice. Acardinal who goes over to some candidate votes thus: Ac-

cedo N. . . . A cardinal who does not wish to change

his vote ballots thus : Acccdo nemini

336. 6. When the accessus is over the votes are again

counted as before in the scrutinium, and if, even then, it is

found that no candidate has received the necessary two-

thirds vote, the cardinals must, in their nextmeeting,

unless

they prefer to elect the Pope per compromissum or qnasi-

inspirationem, proceed to a second165

ballot or scrutinium,

and continue thus to ballot twice a day"*

-namely, in the

morning and afternoon until some candidate receives two-

thirds of all the votes, and is thus canonically elected

1WPhillips, 1. c., pp. 883, 884.

1MIb., p. 886

I81Ib

, pp. 886, 887

IM Ib., p. 887. 1M Ib. 1M Ib., p. 887.

"*

Ib., p. 888.1M

Phillips, Lehrb., p. 206.




Pope.16

The person thus elected, even though not yet in

sacred orders, becomes immediately, upon consenting to the

election, the Vicar of Christ on earth.188

The new Pope, as

a rule, lays aside his old and assumes a new name.169

(J3ir

&

337. Finally, Pope Pius IX., of blessed memory, on

Dec. 4, 1869, a few days prior to the solemn opening of the

Council of the Vatican, issued the constitution Cum Roma-nis Pontificibus, which enacts that the following shall hence

forth be the law of the Church17

: i. If the Holy See be

comes vacant during the holding of an oecumenical coun

cil,171

the election of the new pontiff does not devolve uponthe council,

172

but remains wholly and exclusively with

the cardinals.173

338. 2. Lest any trouble or dissensions should arise, and

in order that the cardinals may proceed more freely and

promptly with the election, the council itself, in whatever

stage it may be at the time, becomes ipso jure immediately

suspended and prorogued until a new pontiff has been

canonically elected and commands its continuance. 3.

That not even with the unanimous consent of the cardinals

can anything be done contrary to these regulations, and

that all such attempts should be null and void.174

Absent

cardinals cannot vote by proxy.175

ART. IV.

Appointments to Bishoprics Mode of Appointment in the

United States.

339- Q- By whom and how were bishops appointed

at various times?

A. The history of appointments to episcopal sees maybedivided chiefly into three periods.

167

Craiss., n. 426.ir*

Ib., n. 427.169


170Cf. Ferraris.V Papa, i., n. 45

171Cf. Al/og. ed. Pabisch, vol. ii., p. 853.

"

Ferr., 1. c.17:i

Const. Rom. Pontif. Pii IX., 1869,Opportunum.174

Ib., Praesentes autem.rs

Devoti, lib. i., tit. 5, Sect, i, 3.








vacant diocese had no share or voice in this presentation or

nomination. The Third Plenary Council ofBaltimore amended

this mode of appointment and made the following enact

ments, which now form the law in this country :

lj;i

346. I. When a diocese falls vacant, whether by the deatht

resignation, transfer, or removal of the bishop, and when, in

consequence, three candidates are to be chosen whose namesshall be proposed or recommended to the Holy See for the

vacant bishopric, the consultors and the irremovable rectors

of the vacant diocese shall be called together, v.g., thirty days

after the vacancy occurs. It will be the right and duty of.

these consultors and rectors, thus properly assembled, to

select three candidates for the vacant see. The candidates

1 bus chosen shall be submitted to the bishops of the province,

whose right it will be to approve or disapprove of them.

II. The meeting of the consultors and irremovable rectors

is called and presided over by the metropolitan of the prov

ince to which the vacant diocese belongs ; or, if the metro

politan is lawfully hindered, by one of the suffragan bishops

of the same province, to be deputed for this purpose by the

metropolitan. Where there is question of choosing three

candidates for a metropolitan see which is vacant, the meet

ing of the consultors and irremovable rectors of the vacant

metropolitan see is called and presided over by the senior

suffragan bishop,"

or. if he is hindered, by another bishop to

be deputed by him.

III. Beforethey

cast theirvotes,

the aforesaid consultors

and rectors shall swear that they are not induced to cast

their votes for a candidate because of unworthy motives,such

as that of expecting favors or rewards. They shall vote by

secret ballot. This vote is merely consultive, i.e., it is simply

equivalent to a recommendation that one of the candidates

be appointed to the vacant see.

193 Cone. PI. Bait. III., n. 15, 16.

184 That is, by the suffragan who is the oldest ratione ordinationis.





On Appointments to

the consultors and irremovable rectors will be presided over,

not by the archbishop of the province, or his deputy, but bythe archbishop or bishop for whom the coadjutor is to be

chosen, or where he is hindered, by the vicar-general, or other

priest, deputed by him. Moreover, in this case, the bishopfor whom the coadjutor is to be named can, if he desires,

suggestor

pointout the names of the

candidates who wouldbe most acceptable to him for thecoacljutorship.

348. VIII. When there is question of electing a bishop for

a diocese newly erected, the rules given above under Nos. II.,

III., IV., V., and VI. shall be observed. However, Rule I..

shall be changed thus : When there is question of proposing to

the Holy See the names of candidates for the new diocese, the

consultors of the diocese, or dioceses, from which the new see hasbeen formed, and the irremovable rectors of the newly-erected

diocese, shall be called together, and it will be their right

and duty to select three candidates for the new bishopric.

This rule is based on the fact that a newlv-erected see will,

of course, have no consultors until after the first bishop, hav

ing been confirmed, appoints them. Hence the consultors

of the old diocese or dioceses properly take the place of the

future consultors of the new diocese, for the purpose of

naming the first bishop.

t^lP 349- As to the manner of holding the above meetingsof the consultors and irremovable rectors, and of voting for

the three candidates to be presented to the Holy See, werefer the reader to the instruction of the S. C. de P. F.

dated April 21, 1852, for England; also to the Statutes of

Cathedral Chapters in England, approved by the First Pro

vincial Council of Westminster, held July 7, 1852; and to

the decree of the S. C. de P. F. dated June I, 1829, regu

lating the mode of procedure in electing bishops in Ireland.

The rules and mode of procedure laid down in these docu

ments, which wegive

below in

Appendix VIII., are evi

dently well adapted to our mode of commendation.



Ecclesiastical Offices or Benefices.

JgiF"It is very important to have these meetings con

ducted in such a manner that the voters shall have full

opportunity to cast their votes with perfect freedom and

without fear or undue influence. To secure liberty of

action, the general law of the Church has laid down clear

and precise regulations, which must be observed in ecclesi

astical elections, especially to vacant bishoprics (supra, n.

301 sq..and 331 sq.). Although the commendation as made

in the United States, Ireland, and England is not an election

proper, it nevertheless takes the place of an election. Hence

the Holy See has carefully laid down, in accordance with

the general law of the Church, the manner in which the

meetings of the clergy in Ireland and England are to be

held for the purpose of making the commendation, as weshall presently see. So far as concerns the United States,

the mode of procedure to be observed in the above meet

ings of the consultors and rectors has not been determined

by the Holy See or the Third Plenary Council of Baltimore,

save in a very general way.

Finally, it should be observed that the above presentation

of candidates to the Holy See, both as made, on the one

hand, by the consultors and irremovable rectors, and on the

other by the bishops of the province, is to be considered,

not as electio, postulatio, or nominatio but merely as commen-

datio, which imposes upon the Holy See no obligation to ap

point any of the persons recommended.1 "

The same holds

true of the presentation as made in Ireland,

England, Canada,and Holland.198

ISir3

As a matter of fact, however, the Holy See nearly

al \\avs appoints one of the candidates usually the one who

is first on the list. recommended or presented in the man

ner above slated, and rarely goes outside of the list of the

candidates presented or recommended to it for appointment.

196 Instr. S. C. de P. F. 18 Martii. \^\. Quod pertinet.

197 Cone. PI. Bait. II. n. 103.I9

*C<> 1. Lac., vol. iii, p. 959.



i 56 On Appointments to

Q- 35O. How are bishops appointed or rather desig

nated in Canada, Ireland, and England ?

A. I. In Canada the method of recommending to the

Holy See candidates to till vacant bishoprics is substantially

the same as that which obtained in the United States prior

to the Third Plenary Council of Baltimore, held in 1884. The

presentation is made solely by the bisliops of the province?The priests have no voice in it.

U^p" 351. II. In Ireland this mode obtains: Three priests

are proposed to the Holy See by the parish priests and can

ons, if any, of the vacant diocese, properly convened for that

purpose. The meeting is called and presided over by the

archbishop, who, however, has no vote. The manner in

which the meeting is to be held and the balloting take place

is clearly and minutely set forth in the decree of the S. C.

de P. F. dated Oct. 17, 1829, and given by us below in

Appendix VII. It is substantially this: i. When a see

falls vacant the vicar-capitular is elected by the cathedral

chapter of the vacant diocese, in the manner prescribed by

the sacred canons, within eight davs after the vacancy. 2.

The metropolitan of the province, as soon as he has been

notified of the vacancy and the election of the vicar-capitular,

issues a mandate to the latter commanding him to convene

the parish priests and canons on the twentieth day from the

date of the mandate. 3. As soon as the vicar-capitular has

received this mandate he writes within eight days to each

of the abovepriests

entitled to vote,

summoninghim to

attend the meeting on the day and at the place designated

by the archbishop.

4. The parish priests and canons, being assembled at the

time and place specified, solemn high mass " de spiritu

sancto" is celebrated. After the mass the president ascends

205 Cone. Prov. Quebec III., a, 1863, Deer. v. ; cf. Coll. Lac., vol. iii., pp.

671. 684. 686, 688



Ecclesiastical Offices orBenefices. 157

a throne or platform in the middle of the church. Those

who have no right to vote are then requested to leave, and

the doqrs of the church are locked. Next the roll of the

voters is called. Two tellers or scrutatorcs are then elected

by the voters present. Whereupon the voters all simulta

neously affirm before God that they will be influenced by no

unworthy motives in their vote. Then each voter in turn

casts his ballot into the ballot-box and returns to his seat.

The three candidates are voted for in one ballot. Conse

quently each voter must put on the ticket which contains

his vote the names of all the three candidates for whom he

wishes to vote, thus :

1. Rev., dignissimus.

2. Rev. -, dignior.

3. Rev. -, dignus.

5.When all have cast their votes, the votes shall be

counted by the tellers, and the names of the three candi

dates who have obtained a majority of votes shall be an

nounced in a loud, clear voice by the two tellers to the arch

bishop or president, and by him to the voters present. 6.

Afterwards the president orders an authentic record of the

proceedings to be drawn up in writing in the presence of

the meeting. Two copies of these minutes are then made

out and signed by himself, by the secretary, and the two

tellers. One copy is given to the vicar-capitular and trans

mitted by him to the Holy See;the other to the president,

and submitted by himto

the other bishops of the province.

7. Thereupon the bishops of the province hold their

meeting and discuss the merits of the candidates chosen by

the clergy. Their opinion is put in writing and signed by

each, and then sent to the S. C. de Prop. Fide. They can

not, even in case they disapprove of the list presented by

the clergy, make out a list of their own.206

mSyn. PL apud Mayn., pp. 273-279.




IÎT"III. In England this method is observed: When a

diocese becomes vacant three candidates are presented or

rather recommended to the Holy See by the catJiedral

chapter of the vacant see.207

The rectors of missions, even

those who are irremovable, have no voice in this presenta

tion. The meeting of the canons, to be held for the purpose

of selecting the three candidates, must be held within amonth from the death of the bishop. It is called and pre

sided over by the metropolitan; or if he is hindered from

being present, as also when the archiepiscopal see itself is

to be filled, by the senior suffragan bishop. Neither the

archbishop nor the senior suffragan can take part in thr

voting.808 The manner in which the meeting is to be con

ducted and the ballots cast is accurately laid down in the

instruction of the S C. de P. F., April 21. 1852, and in the

"

Statutes of the Cathedral Chapters inEngland,"

which we

give below in Appendix VIII. Its main features are as fol

lows :

nil

i. When a see falls vacant the vicar-capitular is elected bythe cathedral chapter within eight days after the vacancy.

2. The canons then assemble at the time and place specified

by the archbishop, as stated. When they are assembled,

solemn high mass " de spiritu sancto" is celebrated by one

of the canons. Next the canons swear that they will keep

the proceedings secret. Then they elect three tellers or

scrutatores to receive, count, and announce the vote. There

upon,without

any previousdiscussion on the merits of the

candidates, they proceed to vote. The voting is by secret

ballot. Separate ballots or tickets are cast for each of the

three candidates.

3. In the first ballot the canons will vote for the candidate

whom they regard as the most worthy (dignissimus) for the

201 Instr. S. C. de P. F., Apr. 21, 1852.

208 Cone. Prov. Westmon. I., a. 1852, Deer. xii.

209 See Coll. Lac., vol. Hi., pp. 924. 925, 950, 959, 1433.




vacant see. Each canon writes the name of his candidate

on one side of a slipof paper and his own name on the other

;

he then folds and seals it in such a manner that his own

name will be on the inside and that of his candidate on the

outside of the paper. When all the canons have given their

vote, the tellers count the vote and announce to the meeting

the names of the candidates voted for. Afterwards the bal

lots are burned. 4. If it is found thai: no candidate has re

ceived a majority of the votes, both of those present and of

those lawfully absent, but represented by procurators, the

balloting must be continued until one of the candidates ob

tains the requisite majority. 5. Next the candidates will

successively vote, on separate tickets, for the second candi

date, who is to be dignior, and for the third who is to be

dignus, and that in the same manner as in the case of the

first candidate who is to be dignissimtis. 6. After the ba lot-

ing is over, the minutes of the meeting are drawn up, read to.

and approved by the canons, and then signed by the Vei VT

Rev. the provost of the chapter, the secretary, and the three

tellers. Three authentic copies of these minutes are made

out: one to be kept in the archives of the chapter; the sec

ond to be submitted by the archbishop to the bishops of the

province ;the third to be sent directly to the S. C. de Prop.

Fide by the archbishop.

7. As soon as possible after the aboê meeting of the

canons the bishops of the province assemble and discuss the

merits of the candidates chosen

bythe canons. Their views

are put in writing and sent to Rome. Note. The bishops

of the province can merely discuss the names chosen by the

canons, and send their opinion on each candidate to Rome.

But they cannot propose a new list of their own.210

The

mode of commendation in Holland is substantially the same

as in England.

/

110Cf. Coll. Lac., vol. iii., pp. 950, 958.



160 On Appointments te

t31F~ Differences between the Commendation in the United

States on the one hand, and that in Ireland and England on the

other. i. In Ireland and England the list of the candidates

chosen by the clergy must be submitted to the bishops of the

province, as in the United States. Consequently it is the

right and duty of the bishops in Ireland and England to

meet and discuss the merits of the

names selected by theclergy, just as in this country. But they cannot, in case

they disapprove of the nominees of the clergy, present a lisf

of their own, whereas our bishops have a right to make a

list of their own. 2. Again, in Ireland, besides the canons,

all who are called parish priestsand by parish priests are

meant allpriests whatever who have charge of congregations

as pastors have a vote. In the United States, besides the

consultors, only those rectors have a vote who are irremov

able. 3. In England the canons only have a vote. The

rectors, even those who are irremovable, have none 4. In

England each candidate is balloted for on a separate ticket;

while in Ireland the names of the three candidates a-? voted

for on the same ticket or ballot

ART. V.

Of Appointments to Non-Prelatical Offices, especially to Parishes

Appointments to Parislies in the United States.

355.Benefices or

ecclesiastical offices are distinguished,i, into major (beneficia majora}, v.g., the papacy, the cardi-

nalate, the episcopal office, prelatures, and abbotships with

jurisdictio quasi episcopalis ; 2, into minor(beneficia minora\

v.g., the office of a parish priest, canon, and the like.2 "

In

the foregoing pages we considered the mode of appointmentto the higher offices

(beneficia majora) in the Church ; in the

: "

Salzano, vol. Hi., p. 229.



Ecclesiastical Offices or Benefices.161

presentwe shall briefly discuss the mode of appointment to

the lower ecclesiastical offices, especially parishes.

356. According to the jus commune of the Church, the

power of appointment to these offices is vested in the Sove

reign Pontiffjure pienario ; in bishops, jure ordinario ; and in

others, jure delegate

357. I. Power of appointment, as vested in the Roman Pon-

tlff_The Pope has full and supreme power (jus plenum, jus

summum, potestas absolica it plenarui} to fill all ecclesiastical

offices or benefices1 &

throughout the Catholic world; for he

is the episcopus universalis?" the ordinarius ordinariorum et

totius orbis, and has potistas plena gubernandi universalem Ec-

358. The Sovereign Pontiff may exercise this power of

appointment in various ways namely, i, jure concursus

inasmuch as he has concurrent power with inferior ap-

pointers ; 2, jure devolutionis, when, for instance, bishops

neglect to confer or fill benefices within the time fixed2 "

by law ; }, jure pracventionis namely, when the Pope en

joins that offices which are not as yet vacant219

shall, upon

becoming vacant, be given to a certain person : the 22

jus

prnevcntionis can be exercised by22

the Pope only ; 4, jure

rcscrvationis, when the Pope reserves to himself the sole

power of appointment"

to certain benefices.

359. The Holy See no longer makes appointments jure

concursus or223

praeventionis ; but it still reserves to itself the

212

Soglia, vol. ii., p. i6C>;

cfr. Ferraris, V Beneficium, art. iv., addit. e*

aliena manu, n. i.2I3

Phillips, rol v., p. 470.

214Cfr. Leuren. For. Benef., part ii., quaest. 512 and 513.

215Ferraris, V. Benef., art. iv., n. i.

SI6Cfr. Cone. Vat

,sess iv., cap. iii.

17

Reiff., lib. iii., tit. v,n. 154.

- "

Bouix, De Parocli., p. 309, edit. 1867.""

ReifF., 1. c., n. 152.

-

Ib., n. 153.221

Cfr. Cone. Trid., sess xxiv., cap. xix., d. R.

4 "

Leuren.. 1. c., quaest. 513."

Bouix, De Paroch., p. 309 ;cfr. Sal/ano, vol. iii., p. 245.



1 62 On Appointments to

appointment to some of the offices.- 24

Now, what appoint-ments are at present chiefly reserved to the Holy See ?

Some of them are contained inM6

the corpus juris {rcserva-

tioncs in corpore juris clausac] ; thus the appointment to all

benefices"

falling vacant apud scdcin apostoiicam or in curia

Romana, is reserved to the Pope. A benefice is said to

become

227

vacantin

curia when its incumbent dies either in

Rome or within forty Italian miles" 8

of it. It is a disputed

question whether the appointment to canonical parishes

becoming thus vacant is reserved to the Pope. The affir

mative is held by Bouixy" the negative by Soglia.2 &

It is

certain, however, that parishes presided over by rectors

amovibiles ad nutum&

are not included in the above reserva

tion. Other appointments, still reserved to the Holy See,

are extracorpus"- juris. Thus, for instance, if an appoint

ment to a canonical parish is made by the bishop, non

tcrvata forma concursiis, the right of appointment in the case

is forfeited by him and devolves on the Pope. The same

holds true of all appointments to benefices made 23 3

contrary

to the prescriptions of the Council of Trent.

360. II. Right of appointment as vested in the bishop of the

diocese. The bishop is, according to the jus commune

vested with the full and free^

right of appointment (col-

latio libera} to all vacant parishes or benefices2 6

in his

diocese.

361. III. Cardinals are generally possessed jure delegate

of ample powers of making appointments to benefices.2 "

124

Soglia, vol. ii., p. 168. Salzano, vol.iii., p. 245.

aeBouix, 1. c., pp. 313, 314, 315.

-"

Phillips, vol. v., p. 517.B &

Soglia, 1. c., p. 169. L. c., p. 315.130

L. c, p. 169.

& 31

Craiss., n. 445.2: & 2

Salzano, vol. iii., p. 245.33

Bouix, De Paroch., p. 317. Ib., p. 323.235

Phillips, Lehrb, p. 261.

130

Devoti, lib. i., tit. v., n. 29 ; cfr. Ferraris, 1. c., n. 30-34.*"

Soglia, 1. c, p. iSi.




Where chapters are canonically established, the appoint

ment of the canons of cathedral chapters belongs, as a rule,

conjointly (jus collationis simultancae) to the bishop and to the

chapter.23 *

Canons of collegiate chapters are elected by the

chapters and instituted239

by the bishop.

362. IV. Power of appointment, as vested in the bisltops of

the United States. Thus far we have spoken of the right of

appointment as determined by the jus commune. We now

examine the question in relation to the present exceptional

status of the Church in the United States. We ask: To

whom belongs the power of appointment to parishes in the

United States? To our bishops solely and exclusively.240

No appointments whatever are reserved to the Sovereign

Pontiff, since, with us, there are no canonical parishes or

benefices. For where the jits commune, whether in corpore

or extra corpus juris, reserves appointments to the Holy See,

it does so only in regard to canonical parishes or offices.

However, according to the Third Plenary CouncilofBaltimore,

the parochial concursus is now obligatory with us, in appoint

ments to parishes or missions whose rectors are irremovable.

Consequently, where the bishop appoints an irremovable

rector without the concursus, the appointment will be null

and void, and devolve upon the Holy See. In the appoint

ment of removable rectors our bishops are not obliged to

have a concursus, but are free to appoint the person whom,in their conscientious discretion, they consider dignior

363. Exemptednuns

(or,rather, their

regular superiors)have

242the right to nominate their chaplain. As there are

no exempted nuns in the United States, the chaplains of

convents are all appointed by the bishop. We sum up : As

there exists no canonical jus patronatus in this country, the

collatio libera i.e.,not only the appointment, but also the

238Bouix, De Capit., pp. 201, 202, 207, edit. 1862.

23U

Ib., p. 243.

""

Cone. Prov. Bait. I., n. i, 2;

cfr. Cone. PI. Bait. II., n. 112, 123, 124, 125.

541 Cone. PI. Bait. II., n. 126.M

Ib., n. 460.






stalled by the bishop or other person deputed by him. The

bishop generally selects some priest (v.g.,the vicar-general

or rural dean) to discharge this duty.

566. Q. What is the custom in the United States rela

tive to the installation of pastors ?

A. As a rule, no installation whatever takes place.

Clergymen appointed to parishes take charge of them with

out any ceremonies of induction. Nor is installation,

strictly speaking, requisite, since with us there are no

parish priests, in the canonical sense of the term.

flow and by whom appointments arc made to the chief

civil offices in the United States. I. Federal offices. I. The

President and Vice-President are chosen not directly by

the people at large, but by electors chosen for that express

purpose. 2. Federal senators and representatives: the

former are usually elected by joint ballot of both Houses

of the Assembly of their respective State, and not directly

by the people ;the latter directly by the people, voting by

districts. 3. The President is empowered to nominate

and,by

and with the advice and consent oi the Senate, to

appoint the supreme and district judges of the United

States, tl:e members of his cabinet, ambassadors, and other

public ministers and consuls, etc. Other inferior officers

are appointed by the President alone, or by the heads of

departments. II. State offices.The governor and lieu

tenant-governor are generally elected directly by the peo

ple. A plurality only is required for a choice. The otherState officers, as distinguished from county and township

officers, are a secretary, treasurer, auditor, and attorney-

general ; they are usually elected by the people for a cer

tain number ofyears."

3

i

"

Walker, pp. 96, 100, 109, no. Boston, 1874.



CHAPTER VIII.

OF THE QUALIFICATIONS REQUIREDIN PERSONS

WHOARE

TO J<E PROMOTED OR APPOINTED TO ECCLESIASTICAL

DIGN3TXES AND OFFICES (DE QUALITATIBUS, ETC.).

ART. I.

Of ihe Requisite Qualifications in General.

367. Three qualifications are chiefly required in persons

to be appointed to ecclesiastical offices,2

especially to the

episcopal, to wit : The requisite age, purity of morals, and

learning.3

368. I. Requisite age (aetatis maturitas]. The law of the

Church prescribes4

that persons to be promoted to the epis

copal dignity should have completed the thirtieth year of

their age ;those who are to be appointed to parishes should

be twenty-four years old/ Persons who are to be appointed

to these or other ecclesiastical offices before they have at

tained the proper age must in all cases6

obtain a dispensation

from the Holy See, otherwise the appointment is null and

void, even though but an hour be wanting to the requisite

age.7

What has been said thus far does not, so far as ap

pointments to parishes are concerned, apply to the United

States, since our parishes are not, properly speaking, bene

fices. Hence, a priest in this country, if ordained at the age

t

1

Phillips, vol. vii, pp. 545, 546.

2

Cap. Cum in Cunctis 7, i, de Elect

3Cone. Trid

,sess. vii., cap. i ,

de Ref.

4 Cfr. Ferraris, V. Beneficium, art. v ,n. 7, 8. 5 Devoti, tit. vi., n. 6.

9

Phillips, Lehrb., p. 149-7

Boirx, de Capit., p. 145 1862,

1 66 -



Ecclesiastical Dignities and Offices. 167

of twenty-three, may also be appointed to a parish at that

age.8 No precise age is prescribed for the Papal dignity.

It is, however, but proper that persons who are to be

elected Popes should be at least thirty years old.9

369. II. Purity of morals (gravitas morum). The ap

pointment of persons who are, i, guilty of crimes, especially

of luxuriousness, drunkenness,

10

and the like; 2,

or

whoarc

irregulares, or Binder grave censure v.g., suspension or major

excommunicationu

is, ipso jure, invalid-12

370. III. Learning (litterarum scientid).A person may

possess learning in a threefold degree: i, in an eminent de

gree, when, without the aid of books, he canreadily"

explain even difficult questions ; 2, in a middling degree, if,

with the aid of books and upon deliberation, he is able to

clear"

up difficult questions ; 3, finally,in a sufficient degree

i.e., in a manner that enables him to discharge the duties

of his office.15

Now, it is a general principle that those persons

only are appointable to ecclesiastical offices who have suffi

cient knowledge&

to enable them to properly discharge the

duties of the respective office. Hence, the particular degree

of learning which is required in appointees varies according

to the office to which they are appointed. Thus, in bishops,

an eminent"

degree of learning (scientia eminens) is very

desirable, though a mediocre (scientia mediocris], nay, even a"

sufficient degree (scientia sufficient], may be tolerated. In

order to insure a proper degree of learning in certain offi

cials, the Church requires that, where it is possible, bishops,

archdeacons, capitular vicars, vicars-general, professors of

theology, and the like, should be licentiates or doctors either

Cfr. Craiss., n. 467. Phillips, Lehrb., p. 148.

10

Craiss., n. 469."

Reiff.. lib. i., tit. vi., n. 221,

13

Phillips, 1. c., p. 149.13

Reiff, 1. c., n. 205.

14Ib.

1BCfr. Ferraris, V. Beneficium, art. v., n. II, li

&

Reiff.,1. c.. n. 2c6.

"

Ib., n.

207.w

Cfr. Cone. Trid., sess. xxii.. cap. ii., d. R.



1 68Qualifications Required for

in theology or canon law.19

Parish priests and others

charged with the cura animarum must be endowed with at

.east scientia sufficient. The Scripture says:"

Quia tu sci-

entiam repulisti, repellam te, ne sacerdotio fungaris mihi."&

371. To the above three qualifications two others are21

added: i. That the person to be appointed to any ecclesi

astical office whatever should be born of lawful marriage

(thorns Icgitinius, natalcs Icgitimi] ;those who are begotten

out of lawful matrimony v.g., of concubinage cannot re

ceive any of the ordines majores or be appointed to any office

to which the cura animarum is annexed, except upon receiv

ing the necessary dispensation from the Holy See, or upon

being legitimized by subsequent marriage.33

Bishops,

moreover, should be born of Catholic parents.24

2. Onlyecclesiastics that is, those who have at least the clerical

tonsure and are therefore in statu clericali can fill ecclesi

astical offices. Laymen, therefore, are not" appointablc.

In most cases, moreover, the appointee should be in sacred

orders.28

In some parts of Europe v.g. yin Austria, Bavaria,

etc. the person to be appointed v.g., to a parish and the

like should be, as far aspracticable," one that is acceptable

(persona grata) to the civil government.

ART. II.

Is it Necessary to Appoint a Persona Dignior in Preference to a

Persona Digna ?

372. Q. What is meant by persona indigna, digna, and

dignior ?

A. i. By persona indigna we mean one who is desti-

"

Phillips, Lehrb., p. 149.*

Reiff., 1. c.,

u. 208.ai Osee iv. 6.

**Craiss., n. 466.

23

Soglia, vol. ii., 94, pp. 185, 186.

14 Const. Onus Apost. Greg. XIV., 1590. 2 Soglia, 1. c., pp. 184, 185**

Phillips, Lehrb., p. 150.v

Ib., Kirchenr., vol. vii., pp. 559, 560.



Ecclesiastical Dignities and Offices. 169

lute" of at least one of the qualifications above mentioned

2. Persona digna is one who has in a&Q

sufficient degree all

the requisite capacities for the office. 3. The persona dig-

nior30

is one who possesses the requisite qualifications in a

more perfect manner than the persona digna &

and who there

fore is better fitted for the office.31

373. Q. Is it allowed to appoint a persona digna in prefe

rence to a persona dignior ?

A. For bishoprics37

and parishes it is necessary to select

the persona dignior33

in preference to the persona digna, and

those who promote persons worthy indeed, yet less worthy

than others, are guilty of mortal sin.34

374. Q. How far is this applicable to the United States?

A. I. Appointments to Episcopal Sees. I. Bishops in the

United States are undoubtedly obliged, under pain of mor

tal sin, to recommend or propose to the Holy See, as candi

dates for bishoprics, not merely those who are worthy and

competent (digni), but those who are the most worthy (dig-

niores} 2. This applies not only to bishops, but also to

the consultors and irremovable rectors

who, accordingto

the present discipline, inaugurated by the Third Plenary

Council of Baltimore, as explained above, n. 345 sq., have the

right and duty to recommend to the Holy See three candi

dates for a vacant diocese. 3. Nay, this holds true even with

regard to laics, male or female, who in any way have a part in

the appointment of bishops.36 The Council of Trent

"

clearly

48Craiss., n. 475.

S9Reiff.

,lib. i., tit. vi., n. 235, 236.

*Ferraris, V. Beneficium, art. v.

,n. 40, 42.

"


32Reiff., 1. c., n. 238-246.

33Phillips, Kirchenr., vol. vii.. p. 566; cfr. Ferraris, 1. c., n. 17-27.

34St. Liguor., lib. iv., n. 91, 92; cfr. Cone. Trid., sess. xxiv., cap. i., d. R.,

and ib., cap. xviii.

36Cfr. Bouix, De Episcopo, vol. i., p. 312, 1873.

36

Cfr. Bouix, 1. c., pp. 312. 313.11 Sess. xxiv., cap. i., d. R.; cfr. Cone. PI. Bait. II., n. 101, 107.



i/o Qualifications Required for

conveys this inference :

" And as regards all an each of

those who have, in any way, any right from the Apostolic

See, or who otherwise have a part in the promotion of those

to be set over the churches (i.e., dioceses), they sin mortally

unless they carefully endeavor that those be promoted

whom they themselves judge the most worthy (digniores)

of, and useful to, the Church."

375. II. Appointments to Parishes in the United States.

in like manner, bishops with us, and others v.g., diocesan

councillors who take part in the appointment of pastors,

would seem to commit mortal sin, unless they select41

not

merely a worthy {persona digna], but the most worthy, per

son (persona dignior} to fill a vacancy. For the very law

of nature demands42

that those who have the right of ap

pointment to offices or charges, to which the care of souls

is attached, shall appoint the worthiest from among the

worthy. This obligation, then, devolves upon all who are

vested with the power of appointment to parishes ;it mat

ters not whether parishes are canonically established or

not.

376. Q. Is the appointment of a persona digna in prefe

rence to a. persona dignior valid ?

A. i. Where appointments to parishes must be made

servata forma concursus, the appointment of a pastor is, ipso

jure, null and void, unless the persona dignior be appointed.41

2. In regard to other appointments v.g., to parishes (bene-

ficia

curatd]

where no concursus need take place the ques

tion is disputed.4

3. The appointment of a persona digna tc

beneficia simplicia is admitted by all to be valid. 4. The ap

pointment, however, of a persona indigna v.g., of one undei

censure, of bad morals, and the like is always prohibited,

41Cfr. Cone. Trid., scss. xxiv., cap. xviii., d. R.

48 Ferraris, V. Beneficium, art. v., n. 27.43

Phillips, Lehrb., p, 152,

44Cfr. Reiff

,lib. i., tit. vi., n. 248, 249; cfr. Soglia, vol. ii., pp. 188, 189.



Ecclesiastical Dignities and Offices.i/ i

nay, as a rule, ipso jure null45

and void, or at least void

able."

377. Q. Is it allowed to transfer priests of bad morals

from one parish to another, instead of deposing them ?

A. If the character of such priests is unknown in. the

new parish, and if there is a reasonable hope that by the

change they will reform, it is unquestionably lawful to

transfer them to another parish.47

Q. What qualifications are usually required for the chief

civil offices in the United Slates?

A. I. Federal offices.I. President and Vice-President of

the United States. The qualifications for President and

Vice-President are the same. The candidate must be (a) a

natural-born citizen of the United States ; () at least thirty

years of age; (c]he must have been fourteen years a resi

dent within the United States.48

2. United States senators

and representatives. Their qualifications are prescribed by

the Federal Constitution, and it is presumed that the States

are precluded from adding any other. A Federal repre

sentative must be twenty-five years of age; an inhabitant

of the State which he represents; and for seven years a

citizen of the United States. A Federal senator must be

thirty years of age; an inhabitant of the State which he

represents; and for nine years a citizen of the United

States. II. Stateoffices. State senators and representatives

must, as a rule, have resided in their respective counties or

districts oneyear

nextpreceding

their election. Noper-

son can be either a Federal or State senator or representa

tive who holds any office under the United States.49

4fReiff.,1. c., 0.248.

4 &

Cfr. Craiss., n. 476.4T

Craiss., n. 488"

Walker, p. 97. Walker, p. 83.



CHAPTER IX.

HOW A PERSON LOSES DELEGATED JURISDICTION.

ISF 378. We have shown above (n. 226sq.) how delegated

jurisdiction, voluntary or contentious, is acquired. Let

us now see how it is lost. Delegated jurisdiction is lost

chiefly, i, by the death, resignation, transfer, or removal of the

person delegating.1

However, it is necessary todistinguish

between delegated jurisdiction which is voluntary or extra-

judicial, and that which is contentious orjudicial. Now dele

gated jurisdiction which is judicial lapses at the death, resig

nation, etc., of the delegans, provided the trial has not as yet

begunby

the

issuing

of the citation (re adhucintcgra\ as we

explain above (n. 55) in the case of rescripta justitiae. Onthe other hand, delegated jurisdiction which is extrajudicial.like a rescript of grace conferring a gratiam jam factam, is

not lost by the death, resignation, etc.. of thedelegans, even

though the delegatns has made no use whatever, as yet, of his

delegated power (re adhuc intcgra], as we show above, n.56."

From this it will be seen that the faculties which our

bishops receive from the Holy See do not expire with the

death of the Pope conferring them. For these faculties are

rescripts of grace, not of justice. For the same reason, the

faculties which rectors and assistant priests with us receive

from bishops do not expire with the death, resignation,

transfer, or removal of the bishop. 2. By withdrawal. When

and how the delegans can withdraw delegated jurisdiction,

see our Counter-points, n. 37 sq. 3. By the death of the person

delegated, provided the delegated jurisdiction was given to

himpersonally (delcgatio persona/is], not merely on account

of his office (delegatio rcalis}. In order to ascertain when .î

delegatio is personalia or realis, it is necessary to examine

Reiff., 1. i.. tit. xxix.. n.

125.

*

Konings. comp. n. 151 (6).&

Konings, Comm. in Vac., n. 21. 4






CHAPTER X.

HOW A PERSON MAY LOSE AN ECCLESIASTICAL OFFICE AND

THEREFORE JURISDICTIO ORDINARIA (DE CESSATIONE

JURISDICTIONS ORDINARIAE ET VACATIONE OFFICIORUM

ECCLESIASTICORUM).

380. Jurisdictio is ordinaria when it is annexed to and

exercised by virtue of an office; hence, a person who is

appointed to the office obtains, ipso facto, jurisdictio ordi

naria ; on the other hand, one who loses the office loses, eo

ipso, jurisdictio ordinaria. The loss of the one, therefore, is

equivalent to the loss of the other, and vice versa. Now,

ecclesiastical offices may be lost, and thus fall vacant, not

only by the death of the incumbent, but also, i, by resigna

tion; 2, translation

; 3, privation ; 4, and in several other

ways, as we shall see. Canonists, therefore, properly say

that a person may lose an ecclesiastical office in two ways :

either voluntarily, as by resignation, or compulsorily, as by

removal."

ART. I.

Uf Resignations (De Dimissione sen Renuntiatione Officiorun

Ecclesiast icorum) .

381. By resignation (renunciatio, cessio, resignatio, spon-

tanea dimissio] is meant the act3

by which an ecclesiastic, of

1

Devoti, lib. i., tit. viii., n. 2. Soglia, vol. ii., p 198.

sSalzano, lib. iii., p. 257.

74



Losing an Ecclesiastical Office. 175

his own free will, gives up his office or benefice into the

hands i.e., with the consent of the proper ecclesiastical

superior.4

382. From this definition it will be seen that a resigna

tion, in order to be valid, must be, i, voluntary that is,

not extorted5

by fear, violence, or deceit and6

cunning :

forced resignations are rescindable. A person, however,

does not suffer7

violence, properly speaking, who, being

guilty of some crime, resigns his office for fear of being juri

dically* deprived of it. 2. Resignations must be wholly

exempt from simoniacal9

stipulations i.e., bargains or con

tracts to give or receive monej^ or any other temporal thing

for the resignation. 3. Finally, the resignation must be ac

cepted by the proper ecclesiastical superior ;otherwise it is

invalid and of no effect, and the resigner may be compelled

to reassume10

his office. We say, I, ecclesiastical superior,

hence no bishop or priest can resign into the hands"

or on

demand of secular rulers;we say, 2, proper superior, for it is

a general rule that an office can be resigned into the hands

of that

superior only

who is1S

vested with the

powerof

appointment to such office. Thus, bishops can tender their

resignations to the Pope only. Parish priests and others

holding of the ordinary13

must, as a rule, resign into the

hands of the bishop of the diocese, and, according to some,14

into the hands of vicars capitular (administrators in the

United States) sede vacante. Vicars-general can accept

resignations only when specially empowered bythe

bishopto do so. We said above, as a rule

;because resignations

which are tendered by parish priests and the like condition-

4

Phillips, Lchrb., 85, p. 161.*

Ib., note vii.

*

Soglia, 1. c., p. 199. Reiff., lib. i ., tit. ix., n. 3.

Craiss,n. 502.

*

Reiff., 1. c., n. 75-82.

"

Ib., n. 13."

Cfr. Phillips, Kirchenr., vol. vii., p. 849.

11

Phillips, Lehrb., p. 162."

Ib., Kirchenr., 1. c., pp. 850, 851, $52.

"

Ib., pp. 850, 851 ;cfr. Craiss., n. 509







: fS How a Person may Lose an

386. II. Another conditional resignation is that which

is made in favorem tcrtii or prospectu amid namely,"when

an ecclesiastic resigns his place only on the express con

dition that it shall be conferred upon a person designated by

himself. It is commonly held that resignations of this kind

can take place only by explicit Papal dispensation,40

not by

permission of bishops.

41

The resigner may, however, law

fullyrecommend a certain person to the bishop, and express

his desire to& 2

see him appointed to the office.

387. III. A third kind of conditional resignations is that

which is43 made cum reservations pensionis namely, when an

ecclesiastic resigns,44

on condition of receiving an annuity (pcn-

sio)from the income of the benefice given up by him. Gene

rally speaking, resignations of this kind can be accepted bythe Pope

46

only, not by bishops. We say, generally speak

ing; for bishops may permit these resignations in certain

cases v.g., lest an ecclesiastic who resigns his parish on ac

count of old age4r>

or sickness should remain without suffi

cient means of support.

388. IV. The other conditional resignations are : i.

Resignatio cum conditionc rcgressus namely, when the re-

signer gives up his place on condition47

of being reinstated

in it at the death of the resignee. 2. Resignatio cum con-

ditione ingressus, which4S

consists in this, that the person ap

pointed to a place is obliged, even before taking possession

of it, to leave it to another. 3. Resignatio cum conditione

aggressus by which an office, beirtg destined for a person

under age at the time, is meanwhile given to another, who

must resign it when the minor becomes of age. The jus

aggressus and the jus regressus are expressly prohibited by

wPhillips, 1. c., pp. 860, 861.

40Ib., p. 863.

41Reiff ,

1. c., 106-100."

Ib., n. 112, 113.

43Phill ps, 1. c., p. 867.

44Gerlach, p. 274.

46

Reiff, lib. Hi., tit. xii., n. 86-89.4 &

Ib"

n- 89 QO.

"

Phillips, 1. c., p 860.*

Ib.*

Ib.



Ecclesiastical Office. 179

the Council of Trent,60

and can be permitted by the"

Pope

only.

389. Q. When do resignations take effect i.e., when is a

resigner obliged to discontinue the exercise of the office re

signed by him ?

A. The general rule is thatMabsolute resignations take

effect as soon as they are accepted by the proper superior ;

conditional resignations, only when the conditions agreed

upon are fulfilled. Hence, i, the resignation of a bishop

takes effect i.e., the see becomes vacant as soon as the

resignation is accepted in the Papal Consistory ;the bishop

may, however, continue to exercise episcopal functions until

properly notifiedE3

of the action of the Holy See; 2, a parish

priest who resigns cannot, once the resignation is accepted

by the bishop, exercise parochial functions in the parish

resigned, except by special permission of the bishop. Hence,

the bishop should appoint a vicar or administrator to take

charge of the parish until a new rector is appointed.64

390. Resignation of Rectors in the United States. Canonical

parish priests can resign their parishes conditionally or un

conditionally provided there be just cause approved by the

bishop.65 The same holds true of removable rectors, and

that even in the case where these rectors who are amovibiles

are regarded as the vicars of the bishop, and are consequently

vested only with delegated jurisdiction."Our rectors, there

fore, removable as well as irremovable, can resign in the

same manner as canonical rectors.As, however,

our rectors

are generally ordained ad titulum missionis, and as therefore

an unconditional resignation is equivalent to giving up the

means of support, they cannot be allowed to resign uncondi

tionally, unless they prove that they have other means of

support.

50Sess. xxv.. cap. vii., d. R. 61

Phillips. 1. c., pp. 871, 872.

6iIb.

, Lehrb., p. 165.M Craiss.. n. 511, 512.

MIb., n. 513.

MLeuren., For. Benef., p. 3, q. 279. "Ib., q. 291.



i8o

ART. II.

Of Transferring Ecclesiastics from one Place to Another (Dt

Translatione).

391. An ecclesiastical office may also become vacant, as

was seen, by reason of its incumbent being-" changed or

transferred (translatid) to anotherplace."

Ecclesiastics can

not be transferred except by authority of the proper supe

rior. Thus, bishops are transferred by the Holy See;

68

parish priests by their bishops.59

In like manner, bishops

cannot, without permission from the Holy See, transfer

their sees from one city to another in the diocese, nay, not

even from one church to another in the same city.60

392. Causes that render changes or transfers lawful. It is

a general principle that ecclesiastics should not be trans

ferred from one place to another without sufficient reasons"

(causaejustae]. Now, the reasons for which bishops, parish

priests, and the like may be changed by their respective

superiors are reducible62

chiefly to two: i, utilitas v.g., if

the transfer is believed to be conducive to the good either

of the entire Church or of a particular church, whether

episcopal or parochial, to which a person is to63

be trans

ferred; 2, necessitas v.g., if a bishop cannot remain in his

diocese, or a parish priest in his parish, on account of

the unwholesomeness of the climate, or by reason of perse

cutions,etc.

64

393. Q. Can the Pope transfer bishops even against their

will?

A. The question is controverted." According to some

"

Phillips, Lehrb., 87, p. 165."

Cfr. Reiff , lib. i., tit. vii., n. 2

"

Ib., n. 3.

6B


60Salzano, lib. iii., p. 256.

61

Phillips, 1. c.

62

Cap. 5 (iii. 19).

63

Reiff., 1. c , n. ro.

**Craiss., Man., n. 522, 523.

**

Ib., n. 525. .




canonists, the Pope may do so ex causa justa, but not" pr6libitu. The question is of no practical consequence, since, at

the present day, bishops are not transferred against their

will." Generally speaking, a bishop is transferred onlyfrom an inferior to a greater see." We say, generally speak

ing ; since, in case special reasons so demand, a prelate maybe transferred from an

archiepiscopalto an

episcopal see,

nay, from a bishopric to aparish."

9

394. Q. Can a bishop transfer parish priests or rectors,

also with us, against their will from one parish or mission to

another?

A. There is question either of rectors who are inamovi-

biles, or of rectors who are amovibiles. I. Irremovable rectors,

also with us, cannot be validly transferred, except uponthese three conditions: I. There must be a cause of neces

sity or evident utility which is both very grave and most

urgent;7

v.g., where a rector by violent temper and the like

has drawn upon himself the implacable hatred of his parishioners. 2. These causes must be legitimately established.

3. The transfer must be to a parish which is better than, or at

least equal to, the former parish, both as regards honor and in

come." For the general law of the Church, in common with

the sentiment of all mankind, looks upon a transfer to an infe

rior or smaller place as reflecting discredit and dishonor both

upon the better office or place itself and upon the person

transferred. Thus in 1198 Pope Innocent III., in a decretal

letter, embodied in the general law of the Church, severely

reproaches the Patriarch of Antioch for having transferred

an ecclesiastic to an inferior or minor place, and thus belittled

and disgraced the ecclesiastic transferred to a minor place.

His words are: " Miramur quod L. transtulisti, tt novo

quodam mutationis genere parvificasti majnrem, et magnum*6

Reiff.. 1. c.. n. 20-27.67

Phillips, Lehrb., p. 166. 68Reiff., 1. c,, n. 7,

69 Ferraris V. Ep ;

pu<v..rt. iii.. n. 4^. C;.p 5, />e e>: Perm. i., 19).

11 S C. C. Dec. IQ, i.-sq; Pr-el. S. Sulp., v.,1. iii., n. 693, Acta Sedis,

vol. 11., p 284.






not without grave and reasonable cause, proved or verified

by the bishop, at least by an extrajudicial investigation.

Thus the S. C. cle P. F., in its answer Ad Dubia regarding the

Instruction of July 20. 1878, speaking- of our removable rec

tors, decrees : Episcopi vero curent ne sacerdotes sine grain et

ralionabili causa de una ad aHam missionem invites transfcrant.

Likewise, the S. C. C. in Una Cii itatcn., Dec. 1585, decided in

resrard to rectors and others ainovibiks ad nutum, as follows:O

Ne ab ordinario qitidem vicarinm cnratum amoveri posse, nisi

ex causa legitima atque probata."Hence the secretary of the

S. C. C., in his folium on the removal or transfer of a re

movable rector brought before the Sacred Congregation,

Dec.1

8, 1847, says:5.

Congregatioearn visa cst

semperretinere

doctrinam, ut sine causa removeri ncqucat sive capellanus siiic

incarius curatus [rector amovibilis} uti luculentissime constat ex

Spoletana 8 Julii 1713.a

Again the secretary of the S. C. C.,

in his folium on the transfer of a succursal rector in France,

.amovibilis ad nutum episcopi, brought before the Sacred Con

gregation in 1870, says:" Praeterea illud quoque liaud

praetereundum puto, quod licet rectores ecciesiarum succur-

salium amoveri va leant ad beneplacitum episcopi, nequcunt

tamen amoveri absque rationabili causa. Unde limitibus cir-

cumscripia est episcopalis potestas. Quas limitationes, eo

quo pollet ingenio, ingenii acuniine Card, de Luca colli-

git, disc. 97, de Benef. Man., n. u, 12, nempe ne remotio

hat ex odio et malitia superioris; ne ex amotione dedecus

aut infamia, aut alind grave praejudicium amoto causetur ;

tinde emit ex quadam non scripta aequitate competcrc rccursum

ad superiorem, et quod necessaria sit aliqua saltern sumiiiana

cognitio causae ; unde necessitas erumpit conficiendi proces-

sum saltern extrajudicialem et summarium?

11 Causae Selectae, Lingen et Reuss, p. 853.

Causae Selectae, I. c.

bS. C. C. 22 Martii, 1873 ; Analecta, 1875, p. 607.



184 How a I crson may Lose an

We have said, "at least, by an extrajudicial investiga

tion; for there are some canonists who maintain that a

judicial investigation must precede all compulsory transfers

even of removable rectors, no less than their absolute dis

missal. See Mgr. Pierantonelli, now defensor S. Vinculi, at

Rome, in his learned work, Praxis Fori Ecclesiastic , p. 107

sq., Romse, 1883. This bc/ok bears the Imprimatur of the

Magister S. P. A., and also of the archbishop-vicegerent of

Rome, and therefore cannot be said to advance an opinion

which is improbable.

It is therefore plain that the power to transfer ad nutum

does not mean the power to transfer arbitrarily ; for, as

Lotterus," DeAngelis,

d and canonists in

general say,

when

the right is given to the superior to act or transfer ad nu

tum, this will or nutus must be directed by reason and

natural justice. Besides, where a person is transferred for

causes other than criminal, the transfer must be made in such

a manner as not to injure his reputation or inflict disgrace

or any other grave injury upon him. (S. C. C..in Ast., 27

Julii 1867, et in Dinien., 27 Martii 1886; Acta S. Sedis, vol.

xix., pp. 53, 54.)Hence a superior or bishop who transfers

a removable rector without sufficient cause, acts unjustly;

Consequently, the ecclesiastic thus transferred may have re

course to the superior. De Angelis says that, as a matter of

fact, when the superior or bishop transferring or removing

does not give just reasons, or gives no reasons at all for his

action, the Holy See, to whom the person transferred has

recourse, is accustomed to annul the transfer, and reinstate

the rector thus transferred or removed. 6 Hence priests

in the United States are not obliged to accept of any

and every mission offered them by the bishop/ though

De Re benef., 1. i., q. 33, n. 31 sq.

dPrael., 1. i., t. 28.

eIb., n. 7.

fCfr. Instructio S. C. de Prop. Fid. 16 Oct. 1830. circa Deer. Cone. Provx

Bait. I. in the Collection of Cone. Prov. Bait., pp. 64. 6;. B.ikirnori, 1851.




they are admonished"

ut non detrectent vacare cuilibet mis

sion ab episcopo designatae." Of course, no priest can

leave his mission without permission from hisbishop."

396. Effects of Translation. The office, whether it be

that of a bishop or pastor, from which a person is trans

ferred, becomes vacant,80

ipso jure, by the transfer;hence its

income no longer goes to the person transferred.

397. Q. At what precise time does a person tiansferred

lose jui xsdiction in the diocese or parish from which he is

changed ?

A. There is question of the translation either of a bishop

from one see to another, or of an ecclesiastic from an in

ferior to a. higher position v.g., from a parish to a bishopric

or, finally,of an ecclesiastic to a non-prelatical office v.g.,

from one parish to another.81

i. If a bishop is transferred

at his own request,83

or with his knowledge and consent, he

loses jurisdictio ordinaria in the diocese from which he is

changed83

the moment he receives certain information that

his translation has been decreed in Papal Consistory. It

matters not whether the information comes

through

letters

from the Secretary of the Sacred College, or in any other

way, provided it is such as may be relied upon. Nay, the

very moment a bishop is transferred in Consistory, and con

sequently before he is informed of the fact, he loses the

power of appointment to parishes that become vacant at

the time.84

If, however, a bishop is transferred without his

knowledge,he does

not,as a

rule,lose

jurisdiction,as stated

above, except on giving his consent." Practically speaking,

however, this supposition is of no consequence ;

88

for, as

Benedict XIV." writes, juxta vigentem disciplinam,"

transla

"

Cone. PI. Bait. II., n. 108."

Cfr. Instructio, cit.

*

Phillips, 1.c., p. 167.

"

Craiss., n. 528.M

Reiff., 1. c., n. 35-41.MBouix, De Episc., vol. i., pp. 390, 391.

**Ib., vol. i., p. 391.

**Ferraris, V. EpSscopus, art. iii

,n. 62.

"*

Bouix, I.e., pp. 390, 391" De Syn. Dioec., lib. xiii., cap. xvi., n. 13.



1 86 How a Person may Lose an

tiones nunc minime fiunt, nisi praevia scientia et consensu

episcopi, qui ab una ad aliam Ecclesiam est transferences."

2. In the second case, if, for instance, a pastor is elevated

to88

the episcopate, he loses his parish, ipso facto., the moment he is consecrated bishop, or when the time for the

consecration has elapsed to wit, three months after beingconfirmed

by the Holy See.*

9

3. A parish priest, for in

stance, who is transferred from one parish to another, loses

the old as soon as he has, or could have, obtained peaceable

possession of the new parish.80

398. Q. Until what time can a person receive his incomeor salary from the church whence he is transferred ?

A. i. A bishop who is transferred from one see to an

other, with his own consent, can draw his income from the

diocese which he leaves only up to theOI

moment his trans

lation is pronounced in Papal Consistory. If, however, a

bishop is transferred without his knowledge,92

he may drawhis income in the usual manner from the old diocese until he

gives his consent to the translation. 2. An ecclesiastic(v.g.,

a pastor) promoted to a bishopric has the right to draw his

salary from his 93

parish or office down to the time of his

consecration, or till the lapse of three months after his con

firmation as bishop. 3. Pastors, for instance, who are trans

ferred from one parish to another,94

may receive the incomeof the old parish until they have possession of the new one.

This is also the custom of this country.

399- Q- To whom belong the proceeds of an office dur

ing its vacancy ?

A. To the vacant church. Hence, the revenues of a

vacant bishopric or parish should be used to defray the

necessary expenditures of the vacant church : what is left

88Cfr. Blackstone, i Com., ch. xi &

Craiss., n. 529.

"Cap. Licet Episc. xxviii., De Praebendis in 6to."

Bencd. XIV., J. c., n. 7. Ib., n . 13.**

Craiss., n. 532. Ib_n $33




goes, as a rule, to the successora6

in office. This, it would

seem, applies also to the cattiedraticum received by bishops

in the United States.

400. Q. How are the fruits or products of a benefice to

be divided between the one who is transferred or has re

signed and his successor in office ?

A. This question has refe/ence9 &

chiefly to the produce,

fruits, or crops gathered from tracts of land often attached

to parishes in Europe, and sometimes also in the United

States."

7

The question, as stated, is controverted. Fer

raris,9

with others, holds that only the crops which are

already harvested (fructus percept i) belong to the predeces

sor"

or first titulary, while the crop not yet gathered in, or

the fruits which are still hanging or unplucked (fructus pen*

dentcs et inexacti], pertain to the church or the successor in

office. Others, however, maintain that the fructus pendcntes

also belong to the person transferred, pro ratau )

temporis.

The maintenance of bishops in the United States is derived

from the cathedraticum""

and the salary of the cathedral.

In the case of translation or death of a bishop with us it

would seem that the cathedraticum,1 & 2

though already re

ceived by the transferred or deceased bishop, should be

divided, pro rata temporis, between the predecessor or his

heirs and the successor in office.

ART. III.

How Ecclesiastics are dismissed

from Office,

also in the

United States.

(Privatio.]

401. Having, in the foregoing article, spoken of transfers,

we come now to dismissals. By dismissal (privatioj is meant

95Craiss., n. 534.

9* Cfr. Ferraris, V. Episcopus, art. iii., n. 65.

81Cfr. Kenrick, Mor. Tract, x., n. 36.

9S L. c.. n. 63-66.

99Cfr. Craiss., n. 535.

I0

Ap. Ferraris, 1. c., n. 66.

101Cfr. our Notes, etc., pp. 86, 87.

loiCfr. Cone. PI. Bait. II., n. ioa



188 How a Person may Lose an

not simply a transfer from one office or parish to another,

but an absolute removal from office. Dismissal is of three

kinds: i. Privatio, by which an ecclesiastic is merely re

moved from office or parish, but not disqualified from hold

ing offices in future.103

2. Depositio, by which an ecclesiastic

is not merely dismissed, but also disqualified forever to hold

office in future, or to exercise ecclesiastical functions. 3. De-

gradatio, moreover, causes the loss of ecclesiastical privi

leges, especially of \\\e privilegiiim fori et canonist We shall

at present speak more directly oiprivatio, or simple dismissal,

rather than of deposition or degradation. However, it is

plain that what is said respecting dismissal applies a fortiori

to deposition and degradation. For deposition or degrada

tion is nothing else than dismissal in an aggravated form.

402. According to the present discipline of the Church,

clerics holding ecclesiastical appointments are of two kinds:

Some are appointed for life and are irremovable; others are

not appointed for life, but ad beneplacitum, i.e., for an indefi

nite period, and are removable. Accordingly, we shall point

Out underseparate headings

how both these kinds of eccle

siastics are deprived of their offices.

i. How "

irremovable"

incumbents are dismissed.

403. The offices whose incumbents are inamovibiles are

chiefly those of bishops, canons, and canonical parish priests.

404. I. Dismissal of Bis/tops from their Office. Jansenists

and no small number of Gallican authors assert that,105

prior

to the Council of Sardica (anno 347), the right to pro

nounce definitively sentence of deposition against bishops

was vested exclusively in provincial councils, so that not

even the right of appeal to the Holy See was allowed.105

103Phillips, Lehrb.. 1 88, p. 396.

104Reiff.. 1. v

, t. 37. n. 22 sq.)06 Cfr. Craiss., n. 540.

106 Cfr. Bouix. De Episc., vo , i.. pp. 318, 319.





IQO How a Person may Lose an

chief pastor, is the judex ordinanus of bishops. 2. If crimi

nal causes of bishops are tried in Rome, the Sovereign Pon

tiff should personally take cognizance of them;

mde jure

extraordinario, however, he may, in fact does, authorize

others v.g., committees of cardinals""

to act in his stead.

Thus, at present, the .S. C. Episcoporum takes cognizance of

grave charges against bishops, and even pronounces sentence of deposition, facto, however, verbo cum Sanctissimo

(i.e., Papa) per secretarium. Criminal charges against bishops

in the United States, and missionary countries in general,

are adjudicated upon by the Propaganda. 3. If, however,

the hearing of the case or trial must take placem

on the

spot, or in the province to which the accused bishop be

longs (v.g., because the evidence sent to Rome does riot suf

ficiently establish the guilt of the defendant), the Popeshould, as a rule, appoint none but archbishops or bishops to

investigate the case and report the facts to the Holy See,

by whom alone, even in this instance, judgment is to be

pronounced. 4. The less criminal causes of bishops are de

termined upon by provincial councils. 5. The Roman Pon

tiff cannot,120

at least lawfully, depose bishops except for

legitimate cause. Nor should he, as a rule, depose them

without trial. We say, as a rule ;"

for all Catholic writers

seem to agree that, under certain circumstances when,

namely, the welfare of the Church so demands bishops

may be deposed without the ordinary forms of judicature,

as was done in France in i8oi.122

406. II. Canons, and the greater number of beneficiaries,

are also, though only by ecclesiastical institution, irremov

able. Hence, they are not deposable, save by trial and

juridical sentence.123

117

Bouix, 1. c., vol.i., p. 324.

"

Cfr. ib., p. 329.119

Cone. Trid., sess. xxiv.. cap. v., de Ref. Iao Craiss., n. 549.ttl

Ib., n. 550.1M

Ib.m

lb.,n. 551.




407. III. Parish Priests proper are also, according to the

present general law of the Church, irremovable."

However,this is not to be understood in the sense that these rectors

can in no case be removed, but simply in the sense that

they cannot be dismissed from their parishes save for certain

sufficient causes and by certain forms of law. What, then,

are these causes and these formalities? We shall presently

give the answer under the subjoined question. We observe

with Father Konings (comp. n. 1693), that the withdrawal of

faculties (revocatio facultatuiri) with us is equivalent to, and

therefore can be inflicted only in the same manner as, priva

tion proper {privatio parochiae).

2. Causes and Manner of Dismissal of irremovable Rectors,

also in the United States.

408. Q. For what causes and in what manner can rectors

who are canonical parish priests, and who are consequently

irremovable, be dismissed from their parishes?

A. i. Only for crimes;* 2, which are very grave; 3, and

expressly stated in law; 4, and upon a regular i.e., formal or

solemn canonical trial (servatojuris ordine). We say, only

for crimes; now, what are the particular crimes for which

dismissal can be inflicted ? We shall give the answer in the

following article. \Ve say again, upon a trial; consequently

privation of parish or dismissal cannot, be inflicted ex in-

formata conscientia. In fact, the Council of Trent empowers

bishops merely to inflict suspension, but not dismissal ex in-

formata conscientia We say also, that, the trial must be a

formal canonical trial. Hence a summary canonical trial is

not sufficient. However, the S. C. EE. et RR., by its In

struction of June 1 1, 1880, modified this prescription of canon

1-24

Phillips. Lehrb., p. 342. 168. Ii5

Konings, n. 1693.

156 Can. 38. c. 16, q. 7; cap. Conquerente 7 (ii. 13).

181

Bouix, De Par., p 365.128 Cone. Trid., sess. xiv.

,c. i. De Rcf.

; Bouix, De Jud., vol. ii., pp. 341, 354.



IQ 2 How a Persoji may Lose an

law by expressly authorizing Ordinaries of Catholic coun

tries in which canon law obtains to make use of the sum

mary trial laid down in the above Instruction, whenever it

was impossible or inexpedient to observe the formalities of

the regular or solemn canonical trial. Of course the proofs of

guilt must always be full and conclusive, no matter whether

the trial is solemn or only summary, In other words, dis

missal can be inflicted only when the guilt is fully (probatio

plena] established in the trial. Half proof {probatio semiplend)

is never sufficient for conviction.129

fS|P 409. Q. How are irremovable rectors in the United

States dismissed from their parishes or missions ?

A. We premise: There are at present two kinds of

rectors with us. Some areirremovable;

othersare not.

We now answer in the words of the Third Plenary Councilof

Baltimore:1

"Rector missionarius permanenter institutus

seu inamovibilis, a sua missione definitive removeri non

poterit, nisi ob causam canonicam, et tarn in remediis praeven-

tivis quam repressivis servata forma procedendi juxta nor-

mam Instructionis S. Congregationis de Propaganda Fide, de

cognoscendis et defmiendis causis criminalibus et discipli-

naribus clericorum, quae incipit Cum Magnopere nuperrimead Episcopos Foederatorum Statuum Americae Septentrio-

nalis directae." From this it will be seen that our irremov

able rectors can be dismissed only for crimes expressly

stated, and by trial, which, however, is always summarywith us, and never solemn.

3- Offences for which Irremovable Rectors may be deprived

of their Parishes, also in the United States.

410. We have said (n. 408) that parish priests can be dis

missed only for crime. Here the question arises : What are

the crimes for which irremovable rectors also in the United

m Bouix, De Par., p. 367.13 N. 38.




States, can be dismissed? Speaking in general, the crime

must be (a)not merely grave, but very grave and atrocious.

For dismissal is a most severe punishment. Now there must

always be a just proportion between the crime and its pun

ishment, (b)It must be expressly stated \\\ law.

1 "

This holds

true whether the dismissal is inflicted ipso jure or per senten^

tiamjudicis.

The lawgives

the

Ordinarya certain amount

of discretionary power in the infliction of minor punishments,

but does not allow him to impose those which are severe,

except in cases expressly stated. Hence, as Reiffenstuel(1. c.)

says, dismissal is never to be inflicted save in the cases ex

pressed in law. Having discussed the general character of

the crimes requisite for dismissal, we shall now enumerate

the particular offences that can be visited with dismissal.

fSiT^n. Q- What are the particular crimes for which

dismissal can be inflicted upon irremovable rectors, also

with us?

A. We premise; According to law, dismissal is inflicted

in two ways: I. Ipso Jure; in this case no condemnatory sen

tence is required, the penalty being inflicted by the law

itself. 133 As a rule, however, a declaratory sentence is neces

sary, and, consequently, parish priests are not, generally

speaking, bound in conscience to lay down their office before

their guilt has been judicially declared.* Nevertheless, the

sentence in this case is retroactive i.e., takes effect from

the time the crime was committed, not merely from the

time sentence was pronounced.135

2. Per sententiam; in this

case a condemnatory sentence is indispensable136

i.e., the

guilty parish priest is to be actually sentenced to dismissal

from his parish. Such sentence takes effect only from the

moment it is pronounced.137

181 Can. Apostolus i, Dist. Si. I3iReiff., 1. iii., t. 5, n. 368, 370.

133Reiff., 1. c., n. 368.

134Ib.

135Bouix, De Paroch

,

pp. 368, 369.

13S Cniiss , n.

557.131

Reiff., 1 c.. n. 369.




412. We now answer : I. The offences for which irremov

able rectors, also in the United States, are ipsojure deprivedof their parishes or missions are chiefly :

13S

i. Heresy. 2. Fal

sification of apostolic letters. 3. Assassination; by assas

sins we here mean not only those who commit the deed,

being hired to do so, but also those who hire them." 4.

Killingor

strikinga cardinal or

bishop." 5. Procuringabortion. 6. Sodomy. 7. Simony; the penalty of dismissal

from parish is incurred only by simonia realis, confidentialis,

et mixta, not by simonia mentalls"

8. Duel, even when

death does not ensue. 9. Usurpation of the property of any .

church or locus pins."

10. If a parish priest, without hav

ing leave from the Holy See, alienates, except in cases per

mitted by law, property belonging to his parish. 1 1 . If he,

having been improperly promoted to sacred orders v..,per

saltum, without a canonical titiilns,"* or without letters di-

missory, or betore the legitimate age presumes to exercise

the orders thus received. 12. For omitting to receive

orders within a year. Thus, if a person not yet ordained

obtains a parish, h? is bound, under pain of losing his parish

ipsojure, to receive the order of priesthood within one yearfrom the time of his appointment.

1 "

This penalty, however,

is not incurred if the appointee was lawfully hindered from

receiving orders within the prescribed timev.g., by sick

ness, etc.

413. II. The offences to which dismissal from parish is

annexed only post judicissententiam are

chiefly

:

14D

i.

Neglect

138 Cfr. our Notes, p. 119.*>

Craiss., n. 558.

140Bouix, De Paroch., p. 374.

mIb., p. 374.

142Soglia, vol. ii., p. 204.

143Bouix, 1. c.. p. 372. Bouix. De Paroch., pp. 370, 371.

146 A number of bishops from Germany proposed at the Vatican Council that

simplex foinicatio notoiia. concubinatus manifestus, ebnetas necnon prodigalitai

incorrigibilis atque scandalosa should also constitute legitimate causes for dis

missal from canonical parishes. (Martin, 1. c., p. 173.)





196 Hoiu a Person may Lose an

dimno, vel ad novas erigendas, postquam Ordinarius re

mature ponderata declaravit, considerata Missionis condi-

tione, scholas novas erigi posse et debere. 3. Temeraria et

post admonitionem repetita susceptio aeris alieni pro ecclesia

seu missione, vei pro ipso sacerdote, sine Ordinarii licentia;

aut inanifesta inobedientia in solvendis debitis contractis.

4. Collusio cum aedituis laicis ad dandum nomen ecclesiae

(note) in acquisitionem falsam pecuniae veluti debitae ipsi

rectori. 5. Fraudulenta deceptio Ordinarii per deliberatam

falsitatem in annua relatione status spiritualis ac temporalis

missionis, in re scilicet magni momenti vergente ad grave

detriraentum missionis ipsius. 6. Publica et perdurans

infamatio quoad mores sacerdotales, qua cura animarum

grave damnum patiatur. 7. Si quis rector inamovibilis

absque sua culpa redditus vel compcrtus est notoria ratione

et permanenter inhabilis ad missionem administrandam, is

inducendus est, ut sponte renuntiet. Si vero id recuset et

per iuris remedium, constituendo ei scilicet vicarium cum

<:ongrua pensione (Cone. Trid., sess. xxi., c. 6, De Ref.; et

Bened. XIV., De Syn. dioec., 1. xiii., c. 9, n. 21, et cap. 10, n. 16)

provided nequeat, Episcopus, propter speciales missionum

nostrarum conditiones, ex gravissima causa legitime demon-

strata, poterit etiam sic irrationabiliter invitum amovere.

Sive autem amoto sive sponte renuntianti procurabit pen-

sionem, quae ex consultorum consilio congrua censebitur,

eique titulum rectoris emeriti conservabit."

4. Dismissal (PRIVATIO) of Removable Rectors, also in the

United States.

415. According to the general law of the Church, as en

acted already by Pope Innocent III. in the General Council

of the Lateran (I2i6),156

by Pope Boniface VIII. (1294-1303),"

156 Cap. 30, De Praeb. et Dign. (iii. 5).

157

Cap. Unic. de Capell. Mon. in 6 (iii. 18).




and confirmed by the Council of Trent,15 &

and still in full

force, the care of souls or the office of rector of a parish is

to be conferred upon the incumbent for life, so that he can

not be dismissed except for certain specified crimes and

upon a formal trial. Consequently, according to the general

law of the Church, irremovability is one of the prerogatives

of a rector of souls or parish priest in the true and canonical

sense of the word. This is in full harmony with the nature

of the office itself and of the duties incumbent upon one who

is in charge of souls. For no one will deny that, while the

duties of a rector of souls can be, absolutely speaking, dis

charged by one who is removable, yet they will be performed

much better and with greater profit to souls by a rector who

is irremovable, and who is therefore the father, the spouse,

and the true shepherd of his flock, than by one who is remov

able ad nutum, and who is, in consequence, not regarded as

a true shepherd, in the full sense of the term.139

416. We say, by the general law ; for, exceptionally, and by

special fazv, namely, by apostolic indult or dispensation, or by

prescription, or by stipulation inserted in the act or instru

ment of foundation, or also by reason of the missionary

status of a country which makes it impossible to establish

parishes, the Church admits of a derogation from the com

mon law, and allows, by way of toleration rather than ap

proval, the care ot souls to be sometimes exercised by rectors

who are removable.

Accordinglythere are at

present, especially

in France,

Belgium, and England, two kinds of rectors removable and

irremovable. This discipline prevails now also in this coun

try. For, according to the Third Plenary Council of Balti

more, held in 1884, a certain number of rectors in each dio

cese are irremovable;the others remain, in consequence,

removable as under the Instruction Qnamvis of July 20, 1878.

158 Sess. vii., cap. 7, De Ref. ; sess. xxiv., cap. 13, De Ref.

i?S. jo x. 12.




jJ3gf~ 417. Q. For what cause and in what manner can

rectors who are amovibilesad nutum be dismissed (i.e., deprived

of, not merely transferred from) from their parishes or mis

sions, also in the United States ?

A. Before answering, it is necessary to explain what is

meantby

the amovibilitas ad nutum,andby

the

powerof the

ordinary to remove ad nutum. The Church, to use the

words of the "learned Santi, Professor of Canon Law in the

Pontifical Seminary at Rome, in his Praelectiones, issued at

Rome in 1886, abhors all arbitrariness and despotism, in its

government, and requires that all superiors who are clothed

with authority and have power to remove, shall exercise

their authority according to right reason, natural justice, and

equity.1CU

Consequently it is certain, speaking in general,

that the power to remove as they say ad nutum does not

mean an arbitrary or unrestricted power to inflict dismissal,161

but a limited power, exercisable according to right reason,

and therefore only for a sufficient cause, proportionately

greater or less, according to the higher or lower grade oif

dignity of the office which is to be taken away.

This principle, while it applies in general to all dismissals

of removable incumbents, applies with special force to the

dismissal of removable ecclesiastics who are appointed not

merely to perform some transient or passing function or

ministry, such as to say mass, preach, or hear confessions on

a certain day or clays, but to an office which necessarily by its

very nature brings with it continuous and constant duties, such

as the care of souls, and which therefore has/rr se irremova

bility annexed to it.62

It is beyond doubt, therefore, that the

power to remove ad nutum, especially when applied to rec

tors of souls, is essentially a limited power, and hence a power

exercisable only for cause.

160 This principle is clearly laid down already by Pope Gregory, in the can.

Jnventum 38, c. 16, q. 7; can. Satis peiversum 7, dist. 56.

161Santi, Prael.

,lib. i., tit. xxviii., n. 12.

U J

Santi, i. 0.




418. Here, then, the question naturally presents itself:

What is considered a sufficient cause in law for the dismissal

of a removable rector ? We answer : The law of the Church,

while it allows, as we have seen, of transfers of rectors, even

against their will, not merely for crime, but also for other

causes of necessity and utility, regards crime as the only suffi

cient cause for dismissal, even of removable rectors. For it is

a general principle of canon law, laid down by Pope Gregory,

that an ecclesiastic, even though he be amovibilis, shall not

be deprived of his office, especially when the care of souls

is annexed to it, except when he has made himself unworthy of

it by crimed This principle is founded upon natural justice.

For the dismissal, even of a removable rector, inflicts plainly

both disgraceand

pecuniary loss,and is therefore a

punishment nay, a punishment of the gravest kind. Now there

can be no punishment where there is no crime, according to

the rule of law : "Sine culpa, nisi subsit causa, non est ali-

quis puniendus."

1MBut it will be objected, that if this be

true, there is no longer any difference between removable

and irremovable rectors. We deny the inference. For in

the case of irremovable rectors the bishop or superior has no

discretionary power to remove for any crime which in his

judgment is sufficiently grave. He can remove only for the

crimes expressly stated in law, and only by a canonical trial.

In the dismissal of removable rectors, on the other hand, the

bishop has a great deal of discretionary power : that is, he is

not tied down to the causes or crimes and the many formali

ties of trial prescribed in canon law for the dismissal of

163 The words of Pope Gregory are:"

Satis perversum et contra ecclesiasti-

cam probatur esse censmam ut . . . suis quis privetur officiis, quem sua culpa

vel facinus, ab officii quo fungitur gradu nondejicit."

Can. Satis 7, d. 56, et

glossa in h. c. Again. Pope Gregory decrees:"

Quam (ecclesiam) si juste adep-

tus fuerit (presbyter), hanc non nisi gravi culpa . . . amittat." Can. Inventum

38, c. 16. q. 7, Glossa. ib. v. nisi gravi. See, especially, Glossa in cap. Unic.

decapell.

Monach. in 6, v. causa, rationabili.

164Reg. xxiii. de Reg. Jur. in 6 .



2OO How a Person may Lose an

parish priests proper, but he is free, or has discretionary

power, to impose dismissal (a) only for crimes indeed, but

yet for crimes which are not expressly stated in law, and

which are, in the estimation of good men, sufficiently grave

to make the rector unworthy of his position ; (b] and by a

trial which is summary and therefore less formal than that

required for the dismissal of an irremovable rector.

The form of trial which is at present necessary in the

United States is, in dioceses where the curia is established,

that which is outlined in the Instruction of the S. C. de P. F.

of 1884; and in dioceses where by Papal dispensation the.

curia is not yet constituted, that which is laid down in the

Instruction of July 20, 1878, as modified in article xii. of the

Instruction of 1884.

This principleis fully and unequivocally recognized al

ready by the Second Plenary Council of Baltimore, and by

the Instruction of the S. C. de P. F. of July 20, 1878. For both

the Second Plenary Council and the Instruction, while stat

ing that all our rectors were amovibiles (C. PI. Bait. II., n. 108,

125 ;Instr. cit. Ad Dubia, i), yet enacted at the same time

that they could not be dismissed from their missions save

for crime and by trial. (C. PI. Bait. II., n. 77; Instr. cit.

Resp. Ad Dubia, I.)

106

419. The above rule, that privation of mission can be in

flicted upon a removable rector, only for crime, is the ordi

nary rule. In other words, dismissal (privatid) fs generally

imposable onlyas a

punishmentfor crimes committed

bythe

incumbent. We say, generally; for there are certain cases,

indicated in law, where very grave and urgent causes render

it necessary to inflict privation upon a rector, even though

he is, technically speaking, guilty of no crime. For in

human affairs it is not always possible to exempt innocent

persons from punishment. Grave reasons of public interest

165 This Instruction, and the answer Ad Dubia are given in the second vol

ume, p. 415 sq.




will and must, at times, prevail over the rights and privileges

of individuals, just as the welfare of a whole community

must be preferred to the welfare of this or that member of

the community.

It is on this principle that even irremovable rectors, who,

though free of crime, are permanently and notoriously disa

bled, v.g., bychronic

disease,from

administeringtheir

parishor mission, may be deprived of their mission if they refuse

to resign, and if, moreover, the circumstances are such that

no assistant priest can be assigned them.168

Here a punish

ment namely, privation is indeed inflicted without crime,

yet not without grave and urgent cause. This ism harmony

with the above maxim of law :

"

Sine culpa, nisi subsit causa,

non est aliquis puniendus."

420. In these cases where privation is inflicted, not indeed

for crime, but for other sufficient causes of public interest, it is

not required that the trial prescribed by the Instruction Cum

Magnopere (or Quamvis of 1878, where it still obtains) should

precede the privation ;but it is necessary and sufficient that

a very careful and accurate investigation should be made

into the causes calling for the privation. This investigation

should be put on record, so that, upon appeal being made

by the rector removed, it may appear ex actis that there is

legitimate cause for the privation. Finally, our removable

rectors can appeal or have recourse to the superior, that is,

to the metropolitan, and ultimately the Holy See, against the

decree or sentence of dismissal. This is expressly set forth

in the Second Plenary Council of Baltimore, n. 77, and in

the Instructions Quamvis of 1878 and Cum magnopereoi 1884.

Has this appeal or recourse a suspensive or only a devolu-

tive effect? We shall give the answer in the third volume

of this work, under the head of Dismissals.

166 Cone. PI. Bait. III., n. 38, vii.



CHAPTER X.

OF RESTRICTIONS UPON JURISDICTION EXEMPTIONS OF RE

LIGIOUS COMMUNITIES FROM THE JURISDICTION OF

BISHOPS AND PARISH PRIESTS ALSO IN THE U. S.

421. Thejurisdictio of bishops, parish priests, etc., may be

suspended by censures and irregularities. Again, it may be

restricted either as to persons or matters : as to persons, it is

limitedby exemptions

;as to

matters, byreservations.

1 At

present we shall merely dwell upon exemptions. Exemption

is a privilege? by î.vhicJi a person or a place is withdrawn from

thejurisdiction of the bishop and placed directly under the juris

diction of the Pope.3

Various Catholic writers,4

hostile to

the Holy See, have written in opposition to the exemptions

granted to religious communities. Febronius, who followed

in the wake of these authors, asserted that exemptions, as

vested in religious communities, were, I, prejudicial to the

authority of bishops ; 2, injurious to the observance of mo

nastic discipline ; 3, nay, even detrimental to the interests of

secular rulers. The defenders of Gallicanism, as a matter of

course, chimed in with this outcry against exemptions.

422. On the other hand, good Catholic writers v.g., St.

Francis of Sales, St. Bernard complain also, not indeed of

exemptions themselves," but of the various abuses occasioned

by them. It were, in fact, vain to deny that no small num-

1

Craiss., n 567.a

Ferraris, V. Regulares, art. ii., n. t

Cfr. Phillips, Lehrb., 149, p. 292.

*

Ap. Bouix, De Jure Regular., vol. ii., p. 86. Parisiis, 1867.

*

Bouix, 1. c., p. 86.

&

Craiss.,n.

-/>g,

570, 571.



Of Restrictions upon Jurisdiction. 203

her of evils were attendant on them ; they had become too

numerous and extensive, and were consequently modified

and reduced in number by the Council of Trent7

and by

various Pontiffs.9

Having premised this, we establish the

following proposition : Exemptions, apart from abuses, arc

lawful, nay, very useful andjust .

423. I. Exemptions arc Lawful. This is proved, I, from

their antiquity.9

Thus, in the year 390, St. Epiphanius,

Bishop of Salamina, having come to Jerusalem on a pil

grimage, and remaining at a certain monastery in Bethle

hem, conferred the order of priesthood upon Paulinus, one

of the monks. When John, Bishop of Jerusalem, com

plained of this act as an infringement of his authority, St.

Epiphanius replied:

"

Nihil tibiinjuriae

fecimus ;in monas-

terio ordinavimus, et non in paroccia [dioecesi],10

quae tibi

subdita sit."

Hence, even at this early period, the monas-

terv in question was exempted from the authority of the

ordinary. In the Roman council held in the year 601, St.

Gregory the Great exempted monasteries in general from

the jurisdiction of bishops. The decree reads :

"

Quia in plu-

ribus monasteriis multa a pracsulibus praejudicia monachos

pertulisse cognoscimus, prohibemus ut nullus episcoporum

ultra praesumat de rebus monasteriorum minuere; neque

audeat quamlibet potestatem habcre imperandi, nee ali-

quam ordinationem faciendi, nisi ab abbate loci fuerit roga-

tus."

"

2. Exemptions, secondly, are lawful, because they

emanate from the legitimate exercise of competent authority

vested in the Roman Pontiffs. No Catholic can doubt for a

moment that Popes can exempt certain persons from the

jurisdiction of inferior prelates.12

424. II. Exemptions, moreover, are Useful and Just. For

religious communities, as at present constituted, are, as a

7Sess. xxiv., cap. xi., d. R., et alibi. Soglia, vol. ii., p. 55,

9

Craiss.,

n.

572.

10

Bouix, DeJure Regular.,

vol.ii.,

pp. 99,

100.

11Ib.

uCraiss.. n. 573 ;

cfr. Soglia, vol. i., p. 243.






domus habitae fuennt juris fictione quasi territoria quafdam

ab ipsis dioecesibns avulsa." ^Cf. Tit. de privileg. et excess,

priv.,1. v., t. 33 ;

in 6, 1. v., t. 7 ;in Clem., 1. v., t. / ; Phillips,

K. R., vol. vii., p. 903; Sabetti, comp. n. 620.)

We say, all regular orders whatever ; now, by regular

orders are meant only those which have solemn vows. Conse

quently, religious congregations of priests which have but

simple vows, even though perpetual, or have no vows at all,

do not possess the privilege in question by the jus commune;

De Angelis, Prael., 1. 3, t. 36, n. 4; yet by special concession of

the Holy See, religious institutes which have no solemn vows

may obtain, in fact, many of them, v.g., the Passionists, Re-

demptorists, have obtained exemption from episcopal juris

diction, just like regulars with solemn vows. According to

the more common opinion, this privilege is not acquired by

the communicatio privilegiorum, but must always be conferred

directly by the Holy See in each individual case (S. C. EE.

et RR., Sept. 16, 1864 ; Lucidi, De Visit., vol. ii., pp. 107, 1 10;

Sanguineti, Jur. eccl. Inst, n. 393, 395, Romae, 1884).

426. Nature andExtent

ofthe

Exemptions of ReligiousCommunities from the Authority of Bts/tops. Religious at the

present day are not, by virtue of their exemptions, released

from all subjection to episcopal jurisdiction.18

For exemp

tions, as was seen, were considerably diminished by the Jus

commune previous to the Council of Trent, by the Council

of Trent itself, and subsequently by various Pontifical

enactments. Hence, bishops are now vested, in various

cases, with jnrisdictio ordinaria or delegata over religious

orders.19

Thus, regulars, notwithstanding their exemptions,

if they live out of their monastery even though it is with the

permission of their superior, and commit offences or crimes

18Craiss., n. 576, 577.

"

Ferraris, V. Regulares, art. ii., n. 2, 3.

50However, those religious are not regarded as living out of their monas

tery who are out of it for two or three months for the purpose of preaching,

giving retreats, or for recreation, and the like. (Craiss., n. 904.)



206 Of Restrictions upon Jurisdiction.

while thus living out of the monastery, can be punished bythe ordinary of the place as delegate of the Apostolic See.

(Cone. Trid., sess. vi., c. 3, De Ret.) Nay, all regulars what

ever, who, residing in their monastery, have, out of that en

closure, committed offences in so notorious a manner as to be

a scandal to the people, shall, at the instance of the bishop,

be severely punished by their own superiors, within such time

as the bishop shall appoint, and the superior shall certify to

the bishop that the punishment has been inflicted; other

wise the delinquents may be punished by the bishop him

self. (Cone. Trid., sess. xxv., c. 14, De Regular.; Soglia-

Vecchiotti, 1. ii., cap. 9; Sanguineti, n. 395, a, b)

Agfain, all regulars who exercise the cura animarum areO * O

,

subject to the jurisdiction and correction of the bishop in

all those matters which relate to the care of souls or the

duties of a rector and the administration of the sacraments.

(Bened. XIV., Const. Firmandis, Nov. 6, 1/44.) For several

other cases where regulars, notwithstanding their exemption,

fall under the jurisdiction of the bishop, see Sogha Vec-

chiotti, I. ii., cap. 9.

427. Thechief cases in which

religiouscommunities do

not fall under the authority ofbishops"

are thus enumerated

by Cardinal Soglia :~*" In reliquis autem quae ad discipli-

nam domesticam, observantiam regularum et votorum, mo-

clum vivendi, officia, promotiones, coercitiones religiosorum,

pertinent, nequit episcopus sese immiscere,"

|5|F" 428. Are religions communities in the United States ex

emptedfrom the authority of bishops ? They are, so far as ex

empt orders of men are concerned; v.g., the Jesuits, Do

minicans, Benedictines. Capuchins, Carthusians.2 &

This is

beyond doubt at present. For the Const. Romanes Pontifices

of Pope Leo XIII., which guarantees the privilege of exemp-

21 Cfr Phillips, Kirchenr.,vol. vii., pp. 903-1027.

2 - Vol. ii., p. 5;

23Cfr. Kenrick, Mor., tract, iv.

; app. ii., n. i-io; tract, viii., n. 50 seq.




tion to regular orders in England and Scotland, was, at the

request of the Third Plenary Council of Baltimore, extended

to this country by decree of the S. C. de Prop. Fide, dated

Sept. 25, 1885 (see decree in Cone. PI. Bait. III., p. cv). Be

sides, it was already clearly implied in the following words

of the Second Plenary Council of Baltimore: "Dura ab

Episcopis serventur regularium exemptiones in iis quae ad

regimen internum communitatis spectant "

Nay, regular orders of men in the United States, England,

Scotland, and other missionary countries enjoy this privilege

of exemption from the jurisdiction of the bishop to a greater

extent than in non-missionary countries where the general

lawof the

Churchobtains.

For, bythe

commonlaw of the

Church, all those small convents or houses of regulars where

there are not at least six monks, namely, four priests and two

lay brothers, remain entirely subject to the jurisdiction of

the bishop of the place where they are situate, as apostolic

delegate, and that not only in matters pertaining to ecclesi-

tical discipline, but also in those relating to the monastic

discipline. (Innoc. X., const. Instaurandae, Oct. 15, 1652;

const. Ut in parvis, Feb. 10, 1654; Leo XIII., const. Roma

nes Pontifices, May 8, 1881; Ferraris, v. Conrcntus, Art. I., n.

5 sq. ; Lucidi, De Visit., vol. ii., p. 32 sq.)

Now the S. C. de Prop. Fide has frequently declared

that this general law requiring as a condition of exemption

that at least six regulars shall live in the same house is not

to be understood as applying to regulars who live and exer

cise the sacred ministry in missionary countries. (Leo XIII.,

const. Romanes Pontifices cit.) Consequently our Holy

Father Pope Leo XIII., now gloriously reigning, in his

celebrated constitution Romanes Pontifices ( Quamobrem} t ftrst

issued tor England and Scotland, and now extended to the

United States, as was seen, declares that regulars in the

84 Cone. Pi. Bait. II., n. 413; cfr. ib. app. 21, p. 322.




aforesaid missionary countries, who live in houses or resi

dences attached to missions or congregations, even though but

three, or two, or one live in sncli Jiouscs, are exempt from the

jurisdiction of bishops in the same manner as regulars living

in monasteries or convents having more than six regulars.

For, as the illustrious Pontiff well says, in view of and as a

reward for their noble missionary labors, they are regarded

bv fiction of law as living intra claustra, although as a matter

of fact thev live extra claustra.

Of course these regulars living in missionary residences,

with us, as elsewhere, while enjoying the privilege of ex

emption, remain subject to the jurisdiction of the bishop,

like all other regulars, in all that pertains to the care of

souls and the administration of the sacraments, and in those

other matters enumerated above (n. 426), as Pope Leo XIII.

expressly declares in the above constitution. Consequently

they must attend diocesan conferences and synods. In re

gard to their right of appealing against statutes of diocesan

synods, the right of the bishop to divide their missions or

quasi parishes, see the const. Romanes Pontificcs of Leo XIII.,

given in its entirety in the Third Plenary Councilof Balti

more, p.212 sq. These regulars are also bound to give the

bishop annuallv an account of their administration of all the

property, real and personal, given them intuitu missionis, but

not of the property belonging to them qua regulares. (Leo

XIII., const, cit.)

IglP What has been said concerning the exemption of

regulars proper in the United States applies, of course, also

to those religious congregations or institutes with us that

have indeed but. simple vows, but yet are exempted by

special concession of the Holy See, v.g., the Redemptorists.

The Third Plenary Council of Baltimore (n. 91) wisely ordains

that whenever any controversy should arise between bishops

and exempted religious communities respecting exemptions,




the bishop should refer the matter to the Cardinal Prefect

of the Propaganda.

UjgP Q. In what manner are religious communities, male

or female, in the United States, who have but simple vows,

or no vows at all, and who do not enjoy, by special conces

sion, the privilege of exemption, subject to the jurisdiction

of the ordinary ?

A. We premise: i. We must distinguish between dio

cesan and non-diocesan institutes. By non-diocesan institutes

are meant those w hose institute and constitutions or rules

are approved by the Holy See, and who are governed by a

superior or superioress-general. By diocesan institutes, on

the other hand, we understand those whose institute and con

stitutions are approved onlv by the ordinary. 2. We must

also distinguish between the power of domestic government

(potcstas dominativd) and the power of jurisdiction (potestas

jurisdictionis). The former relates to the internal or domes

tic government of the religious institute, and empowers the

superior or superioress to see that the rules and constitu

tions of the institute are observed. The latter, i.e., fofestas

jurisdictionis. refers to the power of the keys, and consists in

the power of binding and loosing, inflicting ecclesiastical cen

sures, and the like.4

3. We must also distinguish between

religious congregations of males and those of females. For,

as we shall see, institutes of men are usually granted larger

powers of government than those of women.

fdgT We now answer : I. Non-diocesan institutes, whether

of men or women, are exempted from the authority of the

Ordinary, so far as concerns the domestic government, but not

so far as regards the power of jurisdiction proper. In other

words, they do not depend upon the bishop so far as con

cerns their constitutions as approved by the Holy See. For,

as De Angelis (I. iii., t. 36, n. 4) says, once the Holy See has

56 See our article on Religions Communities in the Am. Cath. Quart. Review

for Apr., 1878. p. 250.



2io Of Restrictions upon Jurisdiction,

sanctioned anything or taken it in hand, inferior ordinaries

can no longer interfere with or change it. Now, as a mat

ter of fact, the rules of these institutes, especially of men,

place the entire domestic authority in the hands, not of the

bishop, but of their own superior or superioress. But the

Holy See, in approving these institutes, generally reserves

the potestas jurisdictionis over themto the

bishop. While,however, these institutes, male or female, are exempt

from the bishop in matters of domestic government, yet

the Holy See, as a rule, vests the potestas dominattva more

largely in institutes of men than in those of women. Thus,

as a rule, these institutes of men, as approved by the Holy

See, are independent of the ordinary, not only in regard

to the internal government of the house, but also in re

gard to the election of their superiors, the admission or dis

mission of members of the institutes, the administration of

their property, their receipts and expenses : whereas, by the

general law of the Church, all religious communities of

women,26even though they have solemn vows and are ex

empted; and a fortiori, therefore, those which have but simple

vows and are not exempt,&

a) must give the oidinary of the

place annually a financial statement of their receipts and ex

penses, (If)and allow the bishop to be present and preside at

the election of the superioress,27

(c)and to examine candidates

before their admission and profession. (Cone. Trid., sess.

xxv., c. 17, De Reg.) This is proper. For women are gen

erally

less capable of transacting business than men. The

Third Plenary Council of Baltimore (n. 92) provides that when

differences arise between bishops and these institutes, the

bishop shall have recourse to the Cardinal Prefect of the

Propaganda.

II. Diocesan institutes depend entirely upon the ordi-

26 Craisson, Des Com. Relig. ,n. 184 sq.; Paris, 1869.

21 Gregor. XV., Const. Inscrutabili, 5; Ferr., V. Regulares, art. ii., n. 5J

De Angelis, 1. iii., t. 36, n. 4.



Of Restrictions upon Jurisdiction, 2 1 1

nary, even though they follow the rule of an order approved

by the Holy Sec. Hence they are not exempt from the

bishop,, even in matters of domestic government.28

If these

institutes wish to found in other dioceses filial houses or

branches which are to remain subject to the mother-house,

an agreement should first be made between the bishop of the

diocese where the mother-house is situate, and the bishop

of the place where the new house is to be opened, and the

superior or superioress of the mother-house, by virtue of

which (agreement) the branch houses shall remain subject

to the superior or superioress of the mother-house, so

far as regards their internal or domestic regime, but also

entirely subject to the potestas jurisdictionis of the ordi

nary of the place where they are. Hence these branch

houses are exempted from the potestas dominatira, but not

from the potestas jurisdictionis of the bishop of the diocese

where they are located.29 As a matter of fact, the greater

number of religious communities of women with us are

diocesan institutes. Moreover, they have, as a rule,30

but

simple vows;

91

theyare

not,in

consequence, true religious,at least strictly speaking, of those orders whose rules they

follow. Hence they fall under the jurisdiction of the ordi

nary32

in the sense just explained.33

This applies to Bene

dictine and Dominican sisters and the like, and also to sis

ters of charity and similar congregations.

fSfP The authority of bishops over the purely diocesan

institutes in question is thus set forth in the Third Plenary

Council of Baltimore, n. 93 :

"

Instituta vero dioecesana quorum

constitutiones ab Ordinario tantum approbatae sunt, depend

ent ab Ordinario, cujus est earegere, corrigere ac reformare.

salvo semper fine ad quern hujusmodi institnta sunt in sua

18 Cone. PI. Bait. III., n. 93. Cone. PI. Bait. III., a. 930

Deer. S. C. Ep, 3 Sept., 1864. ad Archiep. Bait.

11 Cone. PI. Rait. II., n. 419. 420.M

Craiss., Man., n 609.

KBouix, De Jur Reg., vol. ii., p. 132.



2 i 2 Of Restrictions upon Jurisdiction.

fmidatione ordinala, et ad quern constitutionibus ab Ordinario

primitus approbatis diriguntur."

429. How Religious Communities are Exempted from the

Autltority of Parish Priests in whose Parishes Monasteries or

Convents arc situate. Rule I. In whatever matters religious

communities are exempt from the jurisdiction of bishops,

theyare,

afortiori,

free from theauthority

of

parish priests.

34

430. Rule II. By parochial rights (jura parochialia), as

vested, at present, in canonical parish priests, we mean chiefly

the right of administering baptism, Extreme Unction, and the

Viaticum;

35

the faithful, moreover, are obliged to satisfy the

precept of paschal communion in their parish church, and ta

contract marriage coram proprio parocho Regulars, there

fore, cannot administer any of these sacraments to the laity

without the permission of the parish priest or bishop.37

Sev

eral particulars, however, are to be noticed in regard to this

point, i. Regulars approved for the confessions of seculars

can hear (a) lay people also during the paschal season;

38

(b)

the sick at any time; but, having done so, they must inform,

at least

by leavinga note with the sick

person,the

parish

priest of the fact, so as to enable him to administer the Viati

cum and Extreme Unction. 2. They may/9

in like manner,

distribute Holy Communion in their churches, except on

Easter day itself. 3. Formerly the faithful were bound to

hear Mass on Sundays and holidays in the parish church."*

This obligation has lapsed. Bishops and pastors, at present,

may indeed exhort, but cannot compel, the faithful to attend

the parochial Mass."1

34Bouvier, Tract, de Decalogo, vol. v., p. 269. Paris, 1844.

^Ferraris, V. Parochia, n. 22.

ztIb.

31Bouix, De Paroch., p. 442 seq.

38 Cfr. Bened. XIV., De Syn., lib. ix., c. xvi., n. 3.

39Cfr. Bouix, 1. c., p. 448.

40

Cfr. Bouix, De Jur. Regular., vol. ii., p. 196.41

Cfr. Ferraris, V. Parochia, n. 23.



OfRestrictions

upon Jurisdiction. 213

|S|f~ 431. Rule IIL The second rule, as just explained,

refers, among other things, to the administration of certain sac

raments on the part of exempted regulars. Rule III., now

under consideration, relates chiefly to the reception of certain

sacraments by religious. Religious communities, both male

and female, which enjoy the privilegium exemptionis, and that

whether they have solemn or only simple vows, are by that

very fact also exempted from the authority of the parish

priest, in whose parish the monastery or convent is situate.

Consequently, these religious, if they are nuns or sisters, can

receive the above sacraments, namely, the paschal com

munion, the Viaticum, and Extreme Unction from their own

chaplain. For the chaplain of exempted nuns or sisters is

vested with the rights and duties of a parish priest, in regard

to the sisters, to whom he is chaplain. (Ferraris, v. Capel-

lanus Monialium, add. ex al. Man., n.i.)

fîP We say, exempted nuns ; for. sisters or nuns, who

are not exempted and no sisters in the United States are

exempted are subject, according to the general law of the

Church, to the parish priest of the place where the convent

is located, and therefore must receive the above sacraments

from him. However, where the contrary custom prevails,

and where this custom to the contrary is lawfully prescribed,

the bishop may appoint even for nuns or sisters who are not

exempted, chaplains, who shall have the rights and duties

of

parish priests

in relation to the nuns in

question; and

where the bishop does so, the chaplain and not the parish

priest has the right to administer the above sacraments to

the sisters. (Ferraris, 1. c., n. 2-5.)

43 2 -

fSIF"What has just been said of sisters applies,

"a fortiori," to religious communities of men. In other

words, exempted regulars, even though they have but simple

vows, are exempted from authority of the parish priests.

Consequently they receive the above sacraments, not from

the parish priest, but from priests of their own order. This




appliesnot only to professed religious, but also to novices

and postulants, who are also exempt from the authority of

parish priests ; nay, by the Council of Trent," even servants of

monasteries may receive paschal communion, the Viaticum,

and Extreme Unction in the community, church, or chapel,

provided they live43

in the monastery; for if they merely

work there during the day, going out at night, or if they

live in houses44

situate indeed intra ambitum monasterii, but

detached from it, they must receive the above sacraments

from the parish priest. Can students at colleges in charge

of regulars, and girls in academies conducted by nuns, re

ceive the paschal communion, Extreme Unction, and the

Viaticum from the chaplain of the respective institution, or

are they bound to receive these sacraments from the parish

priest of the place? The question4 &

is controverted. It is

certain, however, that the bishop may, by special enact

ment,46

exempt these youths and girls from the obligation of

receiving these sacraments from the parish priest of the place

where the college or academy is situate;in fact, bishops

generally do so at present, not only with regard to47

boys

and girls educated respectively by regulars and nuns, strictly

speaking, but also with regard to students brought up in

colleges conducted by secular priests, and girls educated by

nuns or sisters having but simple vows, and not exempted.

44 Sess. xxiv., cap. xi., d. R.43

Craiss., n. 611.

44Bouix, 1. c., p. 200.

* Ib.(

1. c., pp. 204-209.

* Craiss., n. 612. Bouix, 1. c., p. 209.



CHAPTER XII.

ON THE RIGHTS AND DUTIES OF THOSE WHO ARE VESTEDWITH ECCLESIASTICAL JURISDICTION.

433. Those who have jurisdictio ecclesiastica are by that

very fact entitled to certain rights and prerogatives viz.,

to reverence and obedience from those under their charge.

Now, these rights have corresponding duties;

of these

some are positive, consisting of certain actions to be performed v.g., the duty of residence

;others negative, having

reference to the avoiding of excesses.1

At present we shall

only speak, i, of the rights of ecclesiastical superiors in

general; 2, of their negative duties i.e., of the excesses to

be avoided by them in the exercise of their authority.

ART. I.

Rights of Ecclesiastical Superiors in General (De Obedientia

et Revcrcntid).

434. The right to obedience anda

reverence on the part

of subordinates may be said to constitute the chief preroga

tive of ecclesiastical superiors. Ecclesiastical obedience

(obedientia canonicd) in general consists in three things :

435. i. In this: that an inferior should carry out the di

rections of his superiors, and, therefore,4

submit to their

authority in matters pertaining to their jurisdiction. This

1

Craiss., n. 621.&

Ib., n. 622. Reiff., lib. i., tit. xzxiii., n. 1$.

4

Phillips, Kirchenr., vol. ii., p. 174. Ratisbon, 1857.

215



2 i 6 Rights and Duties of these Vested

every priest promises in his ordination/ Those, moreover,

who are canonically appointed parish priests must also

take the oath of canonical obedience. Now, we ask : Wha

is, especially in the United States, the force of the promise

of obedience given by every priest in his ordination

Chiefly this: I, priests are bound not to give up their mis

sions or congregations without the bishop s permission ; 2,

they are exJwrtcd"

ut non detrectent vacare cuilibet mis-

sioni ab episcopo designatae." Obedience is due the supe

rior even when it is doubtful whether his orders are just;

oecause the presumption is in his favor. But who is to be

obeyed in a conflict of authorities i.e., when two ecclesi

astical superiors, in matters falling under their jurisdiction,

give contrary orders? The general rule is that obedience9

is due to the higher superior. Nor is this opposed to the

principle that an ecclesiastic must obey his bishop rather

;han the metropolitan ;

I0

for, in the conflict of authority, it

js taken for granted that each of the superiors in question

has a right to command. Now, the metropolitan has no

power over the ecclesiastics of suffragans, except during the

visitation and onappeal.

11 On the sameprinciple,

a monk

must obey his prelate rathei than the bishop ;in like man

ner, when the bishop orders something which is contrary to

the jus commune of the Church, the law is to be obeyed, and

not the bishop.12

436. 2. Obedience consists, secondly, in the submission

of the inferior to the judicial authority (jurisdictio conten-

tiosa) of his superiors.

13

*Craiss., n. 622

;cfr. Pontificate Rom., pars, i., p. 77. Mechlin., 1862.

*


*Cfr. Instructio S. C. Prop., 28 Junii, 1830, ap. Cone. Bait., pp. 64, 65.

8This whole matter is well explained in the Instructio of the Propaganda

on the Decrees of the First Prov. C. of Baltimore.

&

Reiff., 1. c., n. 22.I0

Phillips, 1. c., p. 181."

Craiss., n. 623.

15

Ib., n. 622.13

Reiff, I.e., n 20



with Ecclesiastical Jurisdiction. 2 i 7

437. 3. Obedience consists, thirdly, in the reverence due

superiors.14

By reverentia we mean the external marks of

respect which inferiors should show their"

superiors v.g. t

by rising in their presence, giving them the first place, and

the like. Of this reverentia we shall speak in the following

article.

ART. II.

Canonical Precedence Majoritas and Praecedentia.

438. The respect (reverentia) due superiors is shown

chiefly by the precedence which is given them, especially in

processions, funerals, synods, signing documents,and the

like.16

439. Rnles of Precedence. Of these some are general,

others special. I. General Rules of Precedence. Precedence

in general is regulated17

by five causes: I. Ex praerogativa

ordinis ; thus, a deacon, even though younger as to ordina

tion, ranks higher16

than a subdeacon;a priest higher than

a deacon. 2. Praerogativa cunsecrationis ; thus, a consecrated

19

bishop precedes a bishop elect. 3. Ratione jurisdic-

tionis et digmtatis ; hence," an archbishop, even though

younger as to consecration, takes precedence of a bishop.

4. Ratione antiquitatis ; thus, precedence among bishops1"

themselves is regulated by the time of their consecration ;

among priests, by the time of their ordination. This rule

applies only to ecclesiastics in the same ordo ; it admits of

exceptions. 5. Praerogativa ordinantis ; thus, an ecclesiastic

ordained by thePope" precedes others of the same ordo

and dignitas with himself, even though he was ordained

after them.

"

Reiff., 1. c., n. 16.li

Cfr. Phillips, 1. c., p. 174

"

Phillips, 1. c., p. 155."

Reiff., 1. c., n. 3. Ib., n. 4.lf

Ib., n. 5

w Craiss., n. 626.51

Phillips, 1. c., pp. 158-163.n




218 Rights and Ditties of those Vested

440. To these five rules, generally given by canonists, we

may add: i. "Ex privilegio insignium,"mitred abbots"

take precedence over others not entitled to wear the mitre.

2. In sacred functions and public34

prayers those who are in

sacred vestments precede others (even though they be supe

rior in rank) who are in their ordinary dress. 3. In his own

diocese a bishop takes precedence of other bishops, nay,

even of archbishops ; not, however, of his metropolitan."

As a matter of courtesy, however, the bishop of the diocese

may give precedence to strange bishops who are in his dio

cese. 4."

Praerogativa loci,"

(1

by which the Archbishop

of Baltimore takes precedence of all other archbishops in

the United States in councils"

and the like.

441.II.

SpecialRules

ofPrecedence. i.

Vicars-general,as a rule, should have the first place after the bishop, and

take precedence of canons and dignitaries, both in the pre

sence and absence of the bishop, provided, however, they

are present in their official capacity i.e., as vicars-general."

In the United States also vicars-general take**

precedence

of all other priests or dignitaries of the diocese. The vicar-

general of the metropolitan

S1

takes precedence even of the

bishops of the province. Administrators of dioceses, sede

<vacante, in this country, being quasi-capitular vicars, precede

in rank all"

the other clergymen of the respective dioceses.

2. Next in rank are rural deans, then come pastors, and,

finally/3

assistant priests and other ecclesiastics. 3. Regu

lars come last, and should always, even in their own * 4

churches, give precedence to the secular clergy. Prece

dence among priests in the United States is regulated by

Craiss., n. 626.M

Ib., n. 627.M

Phillips, Lehrb., p. 290

19Cfr. Cone. PI. Bait. II., p. 343-

"

Infra .n - 528.

*8 Bened. XIV., De Syn., lib. iii., cap. x,

n. I, 2.

"

Ferraris, V. Vicar.-gen. Novae Addit., n. 2.so Cone. PI. Bait. II., n 72

l

Phillips, Kirchenr,vol. ii., p. 167.

MCfr. Craiss., n. 630.

3

Phillips, 1 c., p. 167.M

Ferraris, V. Ptaecedentia n 9



with Ecclesiastical Jurisdiction. 2 n

the time of their ordination or of their admission into the

diocese.

ART. III.

Of Excesses Committed by Bis/tops or Prelates in the Exercise

of their A uthortty. Of Appeals,

441. CJiief Abuses of Jurisdiction. By abuses of jurisdic

tion we mean, in general, the improper use of it. At pre

sent we shall speak only of those abuses of power that

violate, at least to some extent, the rights of others." A

superior may abuse his authority chiefly: I. By usurping

jurisdiction over persons not under his authority v.g., over

the subjects of38another bishop. 2. By extending his power

ad matcriam alienam v.g., if a parish priest should attempt

to exercise the jurisdictio fori extend even over his own"

parishioners. 3. By bringing before his tribunal, in cases

not allowed by canon law, a cause which, in the first in

stance, should have been tried by an inferior judge. 4. By

unjustly

and without cause takingaway

or restricting the

rights of subordinates. 5. By imposing upon inferiors a

new burden without sufficient reasons v.g., by not observ

ing the canonical mode of procedure in inflicting38

censures,

in trials, and the like. 6. By appointing unworthy persons"

to parishes. 7. By unduly restricting the privileges of ex

empt persons, especially of regulars.40

443. Canonical Remedies bywhich

Inferiors may protectthemselves against Abuses of Authority committed by Prelates

These remedies are chiefly : I . Respectful remonstrances

(humilis supplicatio) addressed to the superior himself who is

guilty4

of excesses. Thus, the Roman laws allowed of re

course"

a principe male informato ad principem melius in

"

Craiss., n. 643.

"

Ib.

"

Ib.

MIb.

"

Reiff. lib. v., tit xxxi., n.**

Ib., n. 6, 10.41

Craiss.. n. 644.



220 Rights and Duties of tliosc Vested

formatum," or, as the proverb has it,

"

ab Alexandro dor-

tniente advigilantem."

St. Bernard tells us that the "

apos-

tolica sedes hoc habet praecipuum ut non pigeat retractare

quod a se forte deprehenderit fraude elicitum." 2. Appeals

(appcllatio).The right of appeal i.e., of removing a cause

from an inferior to a superior judge or court for re-examina

tion is expressly granted by innumerable canons/3

and is, ac

cording to canonists/4

founded in the law of nature. Appeals

are of two kinds, judicial and extra-judicial, according as they

are interposed against judicial or extra-judicial grievances.

Judicial and extra-judicial appeals have this in common, that

both alike always produce a devolutive effect (infra, vol. ii.,

n. 1242). But judicial appeals generally produce, besides a

devolutive, also a suspensive effect (infra, vol. ii., n. 1243),

while extra-judicial appeals do not always produce a suspen

sive effect. 3. Recourse to tlie Holy See (recursus, siipplicatio}.

In cases (a)where a person has either lost the right of

appealing judicially or extra-judicially v.g., where he has

failed to interpose his appeal within ten days; (&} or where

he is altogether forbidden by the law to appeal even in

devolutivo,v.g.,where he is

suspendedex

informataconscientia

he is allowed, as a last resort and by way of equity, to lay

his case before the Supreme Pontiff for redress. The chief

difference between appeals, judicial or extra-judicial on the

one hand, and recourse on the other, is this: Appeals, judi

cial and extra-judicial, can be made to the metropolitan ;

recourse, to the Holy See only.

/I /1 4. Q. In what cases can appeals be made ?

A. Generally speaking, it is allowed to appeal, except

where canon law expressly prohibits it, against any grava

men, whether judicial or extra-judicial.45

It is even lawful to

appeal against future or impending extra-judicial grievances,

even though not yet threatened; also against threatened

judicial injuries."All appeals, whether judicial or extra-

*Epist. clxx.

43Crai?s., I.e.

**Bouix, De Judic., vol. ii., p. 247.

45Reiff.. lib. ii.. tit xxvi i .

,n. 32.

4SCfr. Bouix, 1. c., p. 252.





222 Rights and Duties of those Vested

paternal acts and sentences, whether final or only q

of the bishop, though only"

in devolutivo.""

But if th

bishop proceeds judicially, or by regular trial, or imposes,

even though extra-judicially, not merely paternal corrections

but regular ecclesiastical penalties, such as perpetual suspen

sion, dismissal from parish, an appeal lies to the metropolitan,

even "

insuspensivo."

"

4. An appeal against a law is inadmis

sible, unless the law is either, I, unjust, as may be the case

with particular laws, as statutes of dioceses, decrees of pro

vincial and national councils; or, 2, ceases to bind by reason,

Vg">

f grave inconvenience. Appeals against diocesan

statutes have but an effectum devolutivum"

448. 5. No appeal is permitted against a sentence pro

nounced upon a person guilty of notorious crimes{in causis

notoriis), except in case*3

these crimes can be somewhat de

fended v.g.,if a person, having publicly killed another,

alleges self-defence as an excuse."4

6. Appeals in devolutivo

only lie against regulations of bishops relative to the cura

animarum, the administration of the sacraments, divine wor

ship, and those things which are to be observed or avoided

in the celebration of the

85

Mass.449. 7. Appeals are allowed, not only in matters of

greater importance (in causis majorthus), but also rn those of

little consequence (in causis levioribus). Hence, if a" bishop,

whether judicially or extra-judicially, inflicts by word or

action an injustice, however slight, the ecclesiastic so

wronged may appeal to the metropolitan, who is bound to

admit the appeal. As a rule, this appeal suspends the effect

of the episcopal injunction. Bishops cannot proceed" ex in-

formata conscientia"

save in the two cases specified by

the Council of Trent (sess. xiv.. c. i. d. R.) 8. The

"

Infra, n. 555.81

Craiss., Elem., n. 325, 406.

M Bened. XIV., De Syn., lib. xiii., cap. v., n. 12.

"

Bouix, 1. c., p. 262.M

Ferraris, V. Appellatio, art. iv., n. 57.

**

Bened. XIV., Bulla, Ad militantis Ecclesiae, 8, g.**

Bouix, 1 c, p. 262.



with Ecclesiastical Jurisdiction. 223

phrase, ontni appellatione remota, sometimes used whenT

the

Pope commits a case to some one, does not preclude ap

peals in devolutivo, but only in suspensive ; & fortiori, this

clause does not prohibit remonstrances and other remedies.

450. Mode of Appealing. Rule I. All persons, as a

rule,88

who have serious reasons for believing themselves

injured have a right to appeal their case. Rule II. Gene

rally speaking, it is allowed to appeal from any"

judge

whatever. We say, generally speaking; the exceptions are:

i. No appeal lies from the sentence of the Pope even to an

oecumenical council, nor from an oecumenical council;for

both of these tribunals are ultimate and supreme, having no

superior. Appellants to a future oecumenical council incur,

ipso facto, excommunication, reserved, speciali modo, to the

Holy See even70

at present. 2. There is no appeal from the

decisions of the entire College of Cardinals or of the Con-

gregationes Romanae,71

nor from the final judgments of the7

Rota Romana. 3. Nor from the decision of arbitrators

(arbitri compromissarii) freely chosen by the contending

parties."

451. Rule III. As a rule, the appellant must interpose

his appeal in the presence"of the judge

"

a quo appellatur"

;

for the judge a quo (appellatur) must be notified of the ap

peal, so that he may not proceed any farther in the case.76

452. Rule IV. Appeals, judicial or extra-judicial, except

when made to the Pope, must be made from the inferior

judgeto the immediate

superior.

7

Henceappeals, judicial

or

extra-judicial, I, from rural deans, or other judges subject

to bishops, must be made to the bishop or his vicar-general,

sede plena; to thecapitular" vicar, with us administrator,

tfdf vacante. 2. From the bishop or his vicar-general, and,

"

Bouix, 1. c., p. 265.M

Ib., p. 248.

~Ib.

, p. 267.

"

Const. Apost. Sedis.Tl

Craiss., n. 658."

Bouix, 1. c., p. 268,

"

Ib. T4 Ib. *Schmalzgr. in tit. xxviii,, lib. ii., n. 4^.

T*

Bouix, 1. c., p. 270.TT

Ib., p. 271.



22/| Rights and Diities of those Vested

sede vacante, from the chapter, vicar-capitular, or admimstra-

tor to the archbishop. 3. From the archbishop successivelyto the primate, patriarch, and Pope. 4. No appeal lies from

the vicar-general to the bishop, nor from the Roman Con

gregations to the Pontiff.5. Appeals from a delegatus must

be made to the delegans We said above, except when made

to thePope ; for not only bishops, but also priests and infe

rior:9

ecclesiastics, may appeal directly to the Holy See;the

reason is that the Pope has concurrent jurisdiction with all

inferior ordinary judges.80

This right of appealing directlyto the Holy See is thus affirmed by the Vatican Council:

81

"

Declaramus eum [Rom. Pontificcm] esse judicem supremum fidelium, et in omnibus causis ad examen ecclesiasti-

cum spectantibus, ad ipsius possejudicium rccnrri ; Sedis vero

Apostolicae, cujus auctoritate major non est, judicium a

nemine fore retractandum, ncque cuiquam de ejus licere

judicare judicio. Quare a recto veritatis tramite aberrant,

qui affirmant, licere ab judiciis Romanorum Pontificum ad

oecumenicum concilium tanquam ad auctoritatem RomanoPontifice superiorem appellare." Nay, direct appeals to the

Holy See are not only lawful, but prevail over and take precedence of all other appeals to inferior tribunals. Thus, if,

of the two parties to a suit, one appeals to the Sovereign

Pontiff, the other to the immediate superior v.g., the metro

politanthe suit or case must be brought before the HolySee, provided the party appealing to the Pope notifies the

immediate superior of his action.82

453. Rule V. Appeals from definitive sentences, if inter

posed intmediately i.e., when the judge is still on" the

/ bench (in continenti, stante pede) may be made viva voce in

i:he words, I appeal, or the like." But if these appeals are

Bouix, 1. c., p. 271. Soglia, vol. i., p. 252.

Leurenius, Forum Eccl., tit. xxviii., lib. ii., qu. 1063.

81

Sess. iv., c. iii., in fine.

83Bouix, De Judic., vol. ii., p. 274.

Craiss., n. 661.

Soglia, vol. ii., p. 522.




/ intcrrallumi.e., one, two. or more days after the \

sentence has been pronounced they must be in writing.

However, instead of making the appeal viva voce, or in writ

ing, as just explained, the appellant may begin the journey

to the superior for the sake of appealing. Thus, the voyage \

to Rome has, of itself, the effect of an appeal, if undertaken

within ten days from the time sentence was pronounced or]

the grievance inflicted, and provided \\\z judex a quo be noti-

fie^dof the proposed journey/

5

The reason why the journey

to Rome has the same effect as a formal and express appeal

is that acts express a person s intentions more strongly than

words. Consequently Pope Innocent III. expressly decrees :

"Cum sit

plus

ad Sedem Apostolicam facto (i.e., itinere] pro-

vocare, quam verbo" (cap. Dilccti filii 52, De App., ii., 28).

Whenever, therefore, the law of the Church authorizes a\

person to appeal, it empowers him, by that very fact, to go }

to Rome to prosecute his appeal.

fîP This teaching is clearly laid down in the law of the

Church. Thus Pope Nicholas enacts :

" Revera Justus medi

ator (judex)non

est, quiuno

litiganteet altero

absente,amborum emergentes lites decidere non formidat. His ita

praemissis, volumus et Apostolica auctoritate monemus, ut si_Pres-

iytcr. de quo agititr, post cxcominunicationem suam, Apostolicam

Sedem adire voluerit, nullus iter ejits impedire praesumat" (can.^*~~ &

^î _ ""^fci__in-^^jL_^_^^__^ ^"Hgmaaf

12, c. iii., q. 9). Pope Innocent III. (1213) decided a cele

brated case on the same principles. The case was this: A

controversy had arisen between the Archbishop of Canter

bury and certain monks of his diocese in regard to a chapel.

The monks sent two of their number Jo. and H. to Rome

to prosecute their appeal before the Holy See. These two

monks, after they had set out for Rome, were excommuni

cated by the archbishop. The two monks submitted this

latter act to the Pope as an additional grievance against the

archbishop. Pope Innocent III. decided that the excommu-

85Craiss., n. 5981.



226 Rights and Ditties of those Vested

nication was null on the following ground: "Cum autem

plus sit ad Sedem Apostolicam facto provocare quam verbo,

et ipsis [monachis] propter dictam causam ad RomanamSedem venientibus intelligatur ad Sedem Apostolicam pro-

vocatum; mandamus, quatenus si est ita, dictos Jo. et H.

denuncietis excomrnunicationis vinculo non teneri"

(cap.

Dilcctifilii 52, DeApp.,

ii.,

28).

See also Const. Cordinobis,

issued by Pope Innocent IV. in 1245 (cap. Cordi nobis i, De

App. in 6, ii. 15).

Rule VI. Letters (libelli dimisscrii, apostoli, from anocr-

roXoi, missi] from \hejudex a quo to i\\cjudex ad quern, certi

fying to the appeal,8

are, as a rule,87

necessary, no malfter

whether the appeal is made against a judicial or extra-judi

cialgrievance. We say, as a rule; for, if the jndcx a- quo re

fuses such certificate, the appellant may nevertheless prose

cute his appeal.88

Rule VII. The time fixed by canon law within which ap

pellants must interpose appeals, ask for the apostoli, prosecute and terminate their appeal, is named

<^><- fajalcs**

fatalia. \. We have already seen u hcn appeals should be

made. 2. The apostoli should be solicited by the appellant

and granted by \hejudex a quo within thirty days.3.

One

Xar, and for just reasons lôjjrears, are given the appellant

to prosecute and terminate his appeal, from extra-judicial as

well as judicial grievances.80

ART. IV.

On Appeals to the Civil Power against Abuses committed by Exclesiastical Superiors De appcllatione tanquam ab abusu.

454. Yheappellatio ab abusu consists in having recourse or

appealing to the civil power for91

protection against abuses

committed by ecclesiastical superiors in the exercise of their

jurisdiction." Now, ecclesiastical superiors may abuse

* Bouix, 1. c., p. 276. * Ib.,p. 277. 88 Ib.,p. 278 M Soglia, vol. ii.,p. 525.90

Bouix, 1. c., pp. 281-285."

Craiss., n. 666.&





their authority either by placing a false"

construction upon

laws of the Church, and thus giving an unjust sentence and

inflicting an undeserved penalty, or by acting contrary9S

to

ecclesiastical law v.g., by imposing censures without pro

per trial.

455- Q- Is it allowed to appeal to the civil power or seek

redress in the civil courts against wrongs inflicted by ec

clesiastical superiors ?

A. Such appeals are, as a rule, not only unlawful, but null

and void. Thus Pope Symmachus forbids"

quibuslibet

laicis . . . quolibet modo aliquid decernere de faculta-

tibus ecclesiasticis." The very title of this canon is:

"

Quaecumque a principibus . . . in ecclesiasticis rebus

decreta inveniuntur, nullius auctoritatis esse noscuntur." 9T

For the Church, being a perfect and supreme society,

is necessarily the supreme and, therefore, sole and ulti

mate judge in matters pertaining to her jurisdiction

i.e.,

in ecclesiastical and spiritual things.98 The civil

power," so far from having any authority over the

Church in this

respect,is itself

subjectto her.

Persons,therefore, who have reason to believe themselves in any way

unjustly treated by their ecclesiastical superiors, can seek

redress only in the Church herself namely, by appealing to

the proper ecclesiastical superior, and, in the last resort, to

the Sovereign Pontiff. The Holy See is the supreme tri

bunal in the Church;

its decisions are unappealable, as is

thus stated by the Vatican Council:

I0"

Docemus. . .

Sedis Apostolicae judicium a nemine fore retractandum,

neque cuiquan: de cjus licere judicare judicio."In no case,

therefore, is it allowed to appeal to civil courts from the

decisions of the Holy See. But can it become lawful, under

certain circumstances, to have recourse to the civil courts

84

Phillips, Kirchenr., vol. ii., p. 572.95

Soglia,. vol. i., p. 342.

"

Can. Btne quidem, i, dist 96.& 7

Cap. Quaker, 17, De Judic. (lib. ii. Deer.)98

Cfr. Bouix, De Judic., vol. i., p. 93 seq."

Craiss., n, 667.

100Sess. iv., cap. iii.

;cfr. Syllab., prop. xli.




against irmrieL inflicted by inferior ecclesiastical judges-

T.g.j by bishops? Soglia101

grants that such recourse may,

at times, become lawful,102

when, e.g.,the ecclesiastical judge

<of appeal v.g., metropolitan is unwilling or unable to af

ford relief, and when, moreover, it is morally impossible to

recur to the Holy See ;the case, therefore, is speculative

rather than practical.

^HT" 456. Q. Can priests in the United States have re

course to the civil courts for redress against alleged acts of

injustice inflicted on them by bishops or against other ec

clesiastics ?

A. We must distinguish between those matters or causes

which are strictly ecclesiastical, and those which are tem

poral or mixed. By matters purely ecclesiastical (res stricte

ecclesiasticae)are meant all questions or matters relating (aj

to faith, (b] morals, (c)the administration of the sacraments,

especially of matrimony, (//),the sacred functions or divine

worship, (e),and the rights and duties annexed to ecclesias

tical offices and dignities.103

All other matters, such as

those relating to debts, wills, rights of property and the like,

are considered res temporales.

We now answer : They cannot, in matters strictly ecclesi

astical, as is evident, among other proofs, from the Instruc-

101 L. c.( p. 344.

105 Of course, this must not be understood, as though, even in the case

tinder consideration, it were allowed to carry the cause itself into the civil

court; for canonists

unanimouslyhold that the civil

powercannot, save by

concession of the Church, take any cognizance whatever of purely ecclesiastical

matters. Hence, even in the case referred to, it is lawful to have recourse to

civil tribunals only for the purpose of obtaining a new ecclesiastical trial or of

being enabled to appeal to the higher ecclesiastical judge; and even this appeal

can take place only where the ecclesiastical superior has notoriously abused

his power, and when all other ecclesiastical remedies have been vainly tried.

Cfr. Phillips, Kirchenr., vol. ii., pp. 571-579; Nat. Alexander, saec. iv. pars,

i , pp. 23. 32, pars, ii., pp. 25-40. Paris, 1679.

103 Bened. XIV., De Syn., 1. 9, c. 9, n. 2.104

Ib., n. 7.




tion of the S. Congr. de Prop. Fide, Sept. 2, 1837, on the

decrees of the Third Provincial Council of Baltimore.1 "

We say, in matters, etc. It is true that according to the gen

eral law of the Church, as formerly in force, ecclesiastics

were not allowed to have recourse to secular tribunals

againstother ecclesiastics, even in

temporal

matters.106

But

this general law no longer obtains, having been modified by

concordats, or by custom to the contrary. Hence, as the

S. C. de Prop. Fide in the above Instruction indicates, ec

clesiastics or religious are no longer forbidden to bring be

fore the civil courts causae mixtae i.e., those causes where

the personae sunt ecclesiasticae sed res de quibus controversial

est, tcmporalcs ant fainiliares. This holds especially, as the

S. Congregation says, in the above Instruction, in non-Catho

lic countries, where redress can scarcely be obtained outside

of civil tribunals. However, according to the declaration of

the 5. Congr. S. Officii, Jan. 23, ^886, approved by Pope Leo

XIII.,ecclesiastics and others must always obtain leave from

the Hol^_See_ before they can have recourse to the secular

court against a bishop, even though it be in teragura] mat

ters.

J^gF" Having seen how it is forbidden to sue bishops in

secular courts, we may be permitted to digress somewhat

from our subject, and to ask : Can priests and ecclesiastical

persons in general sue other ecclesiastical persons, inferior

to bishops, in secular courts ? We answer: I. They certainly

cannot, in matters strictly ecclesiastical. This is manifest

from what has been said above. 2. They can, m temporal

matters ; but before doing so, they must obtain permission I

from the bishop.

fjgf This whole teaching as regards suing bishops and

inferior ecclesiastics in secular courts is given in the fol

lowing

Declaration of the S. Congr. 5. Officii, Jan. 23, 1886:

105 See this Instruction in the Cone. Prov. Bait., ab an. 1829-1849, p. 140.

106Supra, n. 206.




"

Suprema Congr. S. R. et U. J. non semel declaravit caput

cogentcs (Const. Apost. Sedis Pii IX.) non afficere nisi legis

latorcs et alias auctoritates cogentes sive directe sive indi-

recte judices laicos ad trahendum ad suum tribunal personas

ecclesiasticas praeter canonicas dispositiones. Hanc vcro

declarationem SS. D. N. Leo Papa XIII. probavit et con-

rirmavit.. . .

Ceterum iis in locis, in quibusfori

privi-

legio per summos Pontinces derogatum non fuit, si in eis

non datur jura sua persequi, nisi apud judices laicos, tenentur

singuliprius a proprio ipsorum Ordinario veniam petere ut cler-

icos in forum laicorum convenire possint ; eamque Ordi-

narii nunquamdcnegabunt, turn maxime, cum ipsicontroversiis

inter partes conciliandis frustra operam dederint. Episcopos

autem in id forum convenire absque venia Sedis Apostohcae

non licet. Et si quis ausus fuerit trahere ad judicem seu

judices laicos vel clericum sine venia Ordinarii,vel Episcopum

sine venia S. Sedis, in potestate eorundem Ordinariorum erit

in eum, praesertim si fuerit clericus, animadverterc poems et cen-

suris ferendae sententiae uti violatorem privilegii fori, si id

expedire in Dominojudicaverint"

fîP In accordance with this declaration, the S. Congr.

de Prop. Fide, in a general meeting held May 17, 1886, in

answer to the question"

quinam modus tenendus sit cum

sacerdotibus qui recurrant ad civilia tribunalia," answered as

follows:"

Declarat S. Congregatio nunquam sese fore admis-

surum recursum vel appellationem sacerdotum qui ad judices

laicos trahere ausi fuerint vel clericum sine venia Ordinarn, vel

Episcopum sine venia Apostolicae Sedis, sive in causa ecclesias-

tica sive non, nisi prius recursum ad civile tribunal interpos-

itum deseruerint. Episcopi vero juxta declarationem capitis

cogentes a Suprema Inquis., die 23 Januarii, 1886 editam, pos-

sunt in praedictum clericum animadvertere, poenis et

censuris ferendae sententiae, maxime suspensions a divinis,

servatis tamen servandis et pro gravitate causae, si id ex

pedire in Domino judicaverint. Quod si venia convenient




in forma laicorum ab Ordinariis petatur, ipsi nunquam earn

denegabunt turn maxime cum ipsi controversiis inter partes

conciliandis frustra operam dederint."107

I3P"

3

Furthermore, to the above answer, the S. C. de

Prop. Fide, in a general meeting held Sept. 6, 1886, replying

to the question,"

Quomodo agendum cum clericis, qui ce-

dunt laicis jura sua erga alios clericos vel Episcopos, ut ipsi

laici loco eorum recurrant ad Tribunal laicum," added the

following declaration :

"

Quod volens Ecclesiasticus sua jura

cedere laico in quaestione aliqua contra clericum, exposcere

debet prius veniam ab Episcopo, et si de lite agatur contra

Episcopum, ab Apostolica Sede. Quod nisi faciat vel obti-

neat, subjectus censetur praescriptionibus emanatis contra

trahentes clericos vel Episcopos ad forum laicum ; censetur

enim agere in fraudemlegis."

109

|5Jir"The Third Plenary Council of Baltimore is in full ac

cord with this legislation. Thus it decrees (n. 84) :

"

Dis-

tricte iisdem (sacerdotibus) prohibemus,ne contra sacerdotem

vel clericum de rebus ctiani temporalibus coram judice civili

litem intentent, sine permissione scripto expressa ipsius Episcopi.

... In rebus vero ecclesiasticis . . . judicium non pertinet,

nisi ad jurisdictionem ecclesiasticam"

For fuller information on this whole question see the

learned testimony of Cardinal Cullen in the O Keeffe trial,

pp. 390, 391, 397. See especially Pope Benedict XIV., De

Syn., 1. 9, c. 9.

The ThirdPlenary

Council(n. 84)

further adds:" Om-

nino vetamus, ne contra laicum de pecunia pro sedium loca-

tione vel alia de causa ecclesiae debita coram tribunali

civili (sacerdotes) agant, nisi accepta prius in scriptis episcopi

ticentia."

101 See Mgr. Zitelli, Appar. Jur. Eccl., pp. 217, 218; Romae, 1886,

108

Apud Zitelli, Appar., p. 546.



PART III.

OF PERSONS PERTAINING TO THE HIERARCHYOF JURISDICTION IN PARTICULAR i.e., OF

ECCLESIASTICS AS VESTED WITH "

JURISDIC-

TIO ECCLESIASTICA" IN PARTICULAR.

CHAPTER I.

OF THE SOVEREIGN PONTIFF.

ART. I.

Of the Roman Pontiff in General.

457. 1. The Sovereign Pontiff is named Pope (Papa),

which means father.1

This name is at present applied to

the Roman Pontiff only, and not, as formerly, to bishops,

and even minor ecclesiastics." The Supreme Pontiff is, jure

divino, head of the entire Church and the centre of its unity,

successor of St. Peter, vicar of Christ, father and teacher of

all the faithful.8

II. We have already spoken of the election

of the Roman Pontiff, and shall here add only a few words

on this point. The Pope cannot elect his successor.4

Some

Popes, it is true, pointed out those whom they thought

most worthy of tne Pontificate; this, however, was com-

mendatio, not electio? The Pope may establish the form to

be observed in the election of the Supreme Pontiff, for no

special form was determined by Christ;but he cannot, even

1

Craiss., n. 671.&

Devoti, lib. i., tit. iii., n. 12. Ib., n. 13.

4 Ferraris, V. Papa rt. i., n. i. Ib., n. ra

232



Of the Sovereign Pontiff. 233

with the consent of the cardinals, issue a constitution em

powering a Pope to elect his successor." Not merely cardi

nals, but others, even laymen, are eligible to the7

Pontifi

cate, though since the time of Urban VI. cardinals only have

been elected.8

III. The Pope always wears the stole (ora-

riuni) ; he also, at times, wears the tiara i.e., a hat or mitre

encircled with three crowns, as an emblem of his suprememagisterial, legislative, and judicial authority.

10 He does

not make use of the crosier, as the curved staff denotes limi

tation of power.11

Again,"

solus Romanus Pontifex, in mis-

sarum solemniis pallio semper utitur etubique."

Others

entitled to the pallium can wear it only on certain days, and

in their churches, but not out of them, because they are

called only in partem sollicitudinis, non in plenitudinem potesta-

tis. The cross is borne before13

the Pope wherever he

goes ; others, even patriarchs, cannot make use of this privi

lege in Rome or where the Pope may be. Moreover, the

Pope usually carries the Blessed Sacrament with" him

when on long journeys. In the following articles we shall

treat of the primacy and the rights attached to it.

ART. II.

On the Primacy of the Sovereign Pontiff.

458. Nature of the Primacy conferred by God upon the Pope

Primacy or supremacy, in general, is of two kinds : one of

honor, the other of jurisdiction. The primacy of honor

(primatns honoris) is that by which a person holds the first

place, without having any authority over others. The pri

macy of jurisdiction (primatnsjurisdictionis) is that by which

Fenaris, V. Papa, art. i., n. 12.7

Ib., n 46-49,

*

Phillips, Lehrb., p. 206. Ratisbon, 1871.*Craiss., n. 673.

10Ib,

11

Cap. de Sacr. Unct.ia

Cap. ad Honor, de Auctoritate et Usu Pallii.

Walter, Kirchenr, 124. Bonn, 1839.14

Craiss., n. 673.



234 Of the Sovereign Pontiff.

a person not only takes precedence of others, but has au

thority over them.13

The primacy, as vested jure divino in

the Roman Pontiff, is the pre-eminence both of honor and

of jurisdiction16

over the whole visible Church, and consists

in the full and supremeI7

ordinary and immediate power to

rule over the whole Church "

pascendi, regendi ac guber-

nandi universalem E,cc\esizim

plena potestas"

l

459. Institution of the Primacy. We lay down the fol

lowing proposition :

" The Roman Pontiff has received

fromVJ God (jure divino) not only the primatns honoris, but

also20

jurisdictionis over the entire Church." This is, at

present, de fide. The proposition has two parts : the first

egards the institution of the primacy, and asserts that the

?ope has, jure divino, the primacy of jurisdiction ; this is

igainst Richer and the Jansenists, who maintain"

that

Christ first and directly gave jurisdiction to the entire

Church,23

or the body of the faithful, by whom it is dele

gated to the Pope and the24

bishops. The second has refe

rence to the nature of the primacy, and is chiefly against

the Greek schismatics, who assert that the Roman Pontiff

has only the primatum honoris, and is but the first among

equals. We now proceed to prove simultaneously both

parts of the above proposition as follows : Peter and his

successors received from Christ the primacy, not only of

honor, but also of jurisdiction over the whole Church;but

the Roman Pontiff is the successor of Peter, therefore the

Roman Pontiff holds from Christ the primacy not only of

honor, but also of jurisdiction over the universal Church.*

460. We prove the major as follows : I. Peter received thi

14

Craiss., n. 674.*

Perrone, De Rom. Pontif., cap. i.

17

Phillips, Lehrb., p. 170.w Cone. Vaticanum, sess. iv.

, cap. iii.

18

Phillips, 1. c. ( p. 170. 0

Craiss., n. 675.

21 Cone. Vaticanum, sess. iv., cap. iii., cfr. Craiss., n. 676; Craiss., Ele

menta, n. 339.

wCfr. our Notes, p. 39.

"

Cfr. Perrone, 1. c.*4

Sogha, vol. i., p 170."

Salzano, 1. c., vol. ii., p. 62.




primacy from our Lord Himself This we prove, I, from

Sacred Scripture. Our Lord said to St. Peter :

" Tu es Pe-

trus, et super hanc petram aedificabo Ecclesiam meam, et

portae infer non praevalebunt adversus earn.""

Here

Christ compares his Church to a material edifice and -Peter

to its foundation. Now. the foundation is to the house what

the head is to the body. Our Lord, therefore, made Peter the

head of his Church i.e.,conferred upon him the primacy

of jurisdiction over the entire Church. For the head

governs the body, as the foundation supports thebuilding."

Hence Pope Leo I. says :

" Ut exortem se mysterii intelli-

geret esse divini, qui ausus fuisset a Petri soliditate rece-

dere. Hunc enim . . id quod ipse erat, voluit nominari,

dicendo, TuesPetrus,etc., utaeterni aedificatio templi .

in Petri soliditate consisteret." Again, our Lord said :

"

Tibi dabo claves regni coelorum."1

Now, among nearly

all nations, especially the Jewish, the giving of the keys of a

house or city was the symbol of the bestowal of full control

over such house or city. Hence, our Lord, by these words,

promisedto confer

uponPeter full that is,

supremepower over the kingdom of heaven i.e., the Church.

31

After his resurrection our Lord fulfilled this promise in

these words addressed to St. Peter:"

Pasce agnos meos,

pasce oves meas." Exegetists show that in the

ordinary language of the Sacred Scriptures the word

pascere (rtoiîaiveiv) means to govern.33

Again, to feed sheep

is to lead them to fertile pastures, guide, watch over, and

protect them ; in a word, to have complete charge of

them.34

Our Lord, therefore, in charging Peter to feed his

sheep that is, the entire Church conferred upon him the

MFirst part of the major.

& 7

Matth. xvi . 18.

*Perrone, 1. c., prop. i. Can. Ita Dominus, 7, dist. 19.

30

Matth., 1. c.31

Perrone, I. c.; Craiss., n. 675.

30

Jo. xxi., 15-18.

33

Phillips Kirchenr., vol. i., p. 114.34S ilzano 1. c., vol. ii , p. 63.




supreme teaching and governing power over the whole

Church.35

Thus St. Bernard/6

addressing Pope Eugene III.,

beautifully writes:"

Tibi universi crediti, uni unus;nee

modo ovium, sed et pastorum tu unus omniumpastor."

"

2. From the Councilof the Vatican :se

"

Si quis dixerit, B. Pe-

trum apostolum a Christo Domino constitutum non esse

apostolorum omnium principem et totius Ecclesiae mili-

tantis visibile caput ;vel eundem honoris tantum, non autem

verae propriaeque jurisdictionis primatum ab eodem D. N.

Jesu Christo directe et immediate accepisse ;anathema

sit." II. The primacy of blessed Peter is jure dwino per

petual, and must, therefore, pass to the successors of St.

Peter. This is evident from the fact40

that the primacy

was not instituted for thepersonal

benefit ofPeter,

but lor

the welfare of the entire Church i.e., for the preservation

of her unity4i

both in faith and communion.

461. The minor- namely, the Roman Pontiff is the suc

cessor of St. Peter is thus denned by the Vatican Coun

cil :

43"

Si quis ergo dixerit, non esse ex ipsius Christi Dminstitutione, seu jure divino, ut B. Petrus in primatu super

universam Ecclesiam habeat perpetuo successores;

aut Ro-manum Pontificem non esse B. Petri in eodem primatu suc-

cessorem;anathema sit." Protestants strain every nerve to

show that Peter either never came to Rome, or, having

been there, left it again, as he did Antioch; that, conse

quently, the Roman Pontiffs are not the successors of St.

Peter. A brief outline of Peter s life alter our Lord s ascen

sion will demonstrate how untenable and indefensible are

these assertions. Peter remained in Judea nearly four years

after his Master s ascension;

he then went to Antioch,

which he governed seven years as bishop. In the eleventh

year after our Lord s Passion he repaired to Jerusalem, wai

**Cfr. Soglia, 1. c., vol. i

, p. 141.38 Lib ii., c. 8.

37Cfr. Phillips, 1. c., p. 117.

3BSess. iv., cap. i.

39 Second part of the major.40 Cfr. Cone. Vatican., 1. c., cap. ii..

41

Soglia, 1. c., p 173."

Sess. iv., cap. ii.




there imprisoned by Herod, but liberated by an angel. In

the same year he went to Rome. In the seventh year of his

sojourn in Rome an edict was published by the Emperor

Claudius exiling all Jews residing in Rome. Consequently,

Peter returned to Jerusalem, where he attended the Coun

cil. Upon the death of Claudius the apostle returned to

Rome, and thej-e suffered martyrdom in the fourteenth year

of Nero s reign, after having governed the see of Rome

twenty-five years.43 The fact that Peter was in Rome is at

tested by Papias, a disciple of the apostles ; by Tertullian;

by Hegesippus in the second century ; by St. Jerome,44 who

explicitly writes that Simon Peter, after presiding over the

See of Rome for twenty-five years, was there crucified

"

capite inverso," and buried"

juxta viam Triumphalem."

462. Union of the Primacy witJi the See of Rome. It is a

doctrine"

of divine revelation that the primatusjurisdictions

is by divine appointment, not by the will of Peter or the

Church, inseparably united to the See of Rome. We say, it

is a doctrine of divine revelation; for, though formerly an

open question, at least according to some, it is at present

undoubtedly de fide, having been thus defined by the Vati

can Council :

""

Docemus, Ecclesiam Romanam, disponente

Domino, super omnes alias [ecclesias], ordinariae potestatis

obtmere principatum."

47Pius IX. has therefore deservedly

condemned the following proposition :

"

Nothing forbids

that the Supreme Pontificate should be transferred from the

Roman bishop and city to another bishop and another

State."4 &

But, it may be objected : The primacy, when first

instituted by Christ, was personal i.e., attached to the person

of Peter;not local i.e., not annexed to any particular place

or bishopric.4

The objection does not hold;for the pri-

41Salzano, 1. c., lib. ii., pp. 63, 64.

** In Catal. Script. Eccl. in Petro

** Our Notes, p. 41.**

Sess. iv.. cap. iii.

*T

Cfr. Craiss., n. 677, in fine.**

Syll., 1864, prop. xxxv.**

Ferraris, V. Papa, art.ii.,

n. 74.




macv was indeed personal i.e.. attached f.o the p ;riOn of

Peter"

non tamen ut Petrus erat persona prive.ta, sed ut

fubîca; et ex tune fuit [primatus] jussu Christ etiam

iocalis, seu certo loco, Romanae IVoi nimirum affixus;

adeoque non ex voluntate Petri, sed ex voluntate et jussu

Christi fuit primatus Ecclesiae annexus Episcopatui Ro

mano." Nor can it be objected that the Popesmay

trans

fer the Papal See to some other city, as, in fact, they did

transfer it to Avignon ;for nbi Papa, ibi Roma the Pope,

wherever he may be, is and remains Bishop of Rome.

Finally, neither will it avail to say : The city of Rome maybe totally destroyed ;

lor Rome, as acity, may perhaps

perish, but Rome, as a see, is imperishable.62

463. Form of Government oftlic LJnircJi.

The principalforms of government are the monarchical, the aristocratic,

and the democratic or republican.63

I. C/iief errors on this

point. i. Luther and Calvin assert that the Church has a

democratic form of government, her supreme power being

in the04

hands of the people or laity. 2. The Greek schis

matics, and the body of Protestants called Presbyterians,

maintain that the Church has an aristocratic" form of

government, the supreme power, according to the former,

being vested in the bishops ; according to the latter, in the

presbytery. 3. Bossuet held that the Roman Pontiff was in

feriorM

to an oecumenical council, and that the legislative

power in the Church lay conjointly in the hands of the

Pope and of the bishops. This opinion is at present hereti

cal. The two preceding theories are also heretical. II.

Correct view. I. No small"

number of Catholic theologians,

headed by the illustrious Cardinal Bellarmine, hold that the

Church is a monarchy, tempered,6 &

however, by aristocracy,

"I.e., the primacy attached to Peter, not as a. private bat public person."

Ferraris, 1. c,n. 75 ;

cfr. Soglia, vol. i., p. 178.6i

Ib., n. 78-80, 8l

"

Salzano, 1. c., lib. i., p. 22.B1

Ib., p. 23.66

Ib., p. 24.

&

Ib.. p. 26.7Ib.

&

Cfr. Devoti, Prolegom., n. 16-20.




in the sense, namely, that bishops rule in the Church jure

proprio, being placed to rule by the Holy Ghost, but not by

the Roman Pontiff. 2. Others admit59

that bishops are

placed by the Holy Ghost to rule in the Church; yet, as

they are placed to rule Subordinately to the Pope, it follows

that the Church is an absolute monarchy.00 The difference

between these two opinions seems to be verbal rather than

real. Both admit that the supreme power in the Church is

vested in a single ruler the Roman Pontiff and that there

fore the Church is a monarchy as to the form of govern

ment; according to Craisson,

01

this is dc fide.

464. Q. Are all the actions of the Pope performed by

him as head of the Church ?

A. They are not. For the Pontiff may sometimes act,

not as the Vicar of Christ, but as the Patriarch of the West,

exercising only those rights which appertain to other patri

archs. Again, he may act only as the Primate of Italy, or

Metropolitan of the Roman Province, or merely as Bishop

of the city of Rome.- Has the Sovereign Pontiff "jurisdictio

immediata" over the entire Church? Wepremise:

i. Ac

cording to Febronius and many Gallicans," non potest S.

Pontifex ordinarie, invitis episcopis, consueta episcoporum

munera in eorum dioecesibus exercere, quia non est pastor

in alienis dioecesibus immediatus, sed tantum mediatam habet

in iisjurisdictionem."

MAccording to these writers, ///radfo-

tio mcdiata is that which can be exercised only in certainM

cases determined by canon law v.g., when bishops neglect

their duties ;

85on the other hand, jurisdictio immediata is

that which is exercisible by the Popecs

or his delegates not

only in case of necessity, but constantly. We now answer

directly : The Roman Pontiff has direct or immediate, not

"

Cfr. Phillips, Kirchenr., vol. i., p. 251.oc

Salzano, 1. c., p. 27."

N. 675.

"Bcned." XIV., De Syn., lib. ii., cap. i.;

cfr. Devoti, lib. i., lit. iii., n. 21.

91

Ap. Craiss., n. 6So.4 Cfr. Soglia, vol. i., p. 180

"

Cir. our Notes, pp. 41, 42."

Cfr - Tarqu., p. 113.




merely mediate, authority over the whole Church. This is

defide" being thus defined by the Vatican Council :

ei"

Si

quis dixerit, Romanum Pontificem non habere plenam et

supremam potestatem jurisdictionis in universam Ecclesiam,

aut hanc ejus potestatem non esse ordinariam et immediatam

sive in omnes aut singulas ecclesias, sive in omnes et singu-

los

pastoreset fideles, anathema sit."

465. Q. Can the Pope abdicate?

A. He can;the resignation must be made to the Colle^

of Cardinals, whose exclusive privilege it is to elect the suc

cessor.

466. Q. Is a Pope who falls into heresy deprived, ipso

jure, of the Pontificate ?

A. i. There are two opinions: one holds that h is,

by virtue of divine appointment, divested, ipso facto, or the

Pontificate;the other, that he is, jure divino, only remov

able. Both opinions agree7C

that he must at least be

declared guilty of heresy by the Churchz>., by an oecu

menical council or the College of Cardinals. 2. The ques

tion is hypothetical rather thanpractical."

For although,

according to the more probable opinion, the Pope may fall

into heresy and err in matters of faith, as a private person,"

yet it is also universally admitted that no Pope ever r id fall

intoheresy,"

even as a private doctor.

47Cfr. Craiss .,

n. 680.

69

Ferraris, V. Papa, art.ii., n. 36.

ri

Phillips, Kirchenr., vol. i., pp. 277, 274.

"

Fertaris, 1. c., n. 62-66. Genuae, 1768.

MSess. iv., cap iii

ro

Craiss., n. 68 .

nIb., p. 877.



CHAPTER II.

ON THE RIGHTS AND PREROGATIVES OF THE ROMAN PONTIFF.

SECTION I.

Rights of the Roman Pontiff in"

Spiritual Matters?

ART. I.

Rights of the Roman Pontiff tlicit flow "immediately" from his

Primacy or Supremacy over the entire Church ; his Infalli

bility and Supreme Legislative A nthority,

467. Mode of Determining tJie RigJits annexed to the Pri

macy of the Pope. I. Nicholas de Hontheim (Justinus Fe-

bronius) erroneously divided the rights contained in the

supremacy of the Roman Pontiff into essential (jura essen-

tialia, primigenia] those, namely, which were conferred

upon the Roman Pontiffs by our Lord2

himself, and there

fore exercised already in the first centuries of the Church :

and into accidental (jura accidcntalia, advcntitia, secundaria^

accessoria, humana)* i.e., those which originally, i.e., in the

first seven centuries of the Church, were exercised by

bishops and provincial councils, but which were afterwards,

chiefly through the ambition of Popes, and by means of the

Isidoran decretals, annexed to the primacy. According to

Febronius and his school, the primacy may exist in fact,

has existed without the jura accidentalia. In this radically

wrong division the exercise of the power inherent in the

1

Phillips, Lehrb., pp. 171, 172, n. I.*

Cfr. Soglia, vol. i., p. 183*

Phillips, Kirchenr., vol. v., 202, pp. 21-34.



242 On the Rights and Prerogative*

Papal supremacy is confounded with the power4

itself. The

former, it is true, varies according to circumstances;but the

latter is, and always has been, the same. II. Some Catholic

canonists&

distinguish between the various rights of the

primacy according to the threefold power which Christ

bestowed upon His Vicar on earth namely, the potcstas

wagisterii,ministerii, et

jurisdictionis

orimperil.

Others,

whom we prefer to follow, divide the rights of the primacy

into those which flow immediately and those which flow

mediately from the supreme power of the Pope.6

Now,

what rights emanate immediately or directly from the pri

macy ? Those which are attached to or contained in the

primacy in such manner as to be the foundation of various

other rights, which latter, being based upon the former, arenamed mediate rights. Now, the immediate rights of the

Papal supremacy are these two :

infallibility and supreme

legislative authority. For the Pope is the centrum necessa-

rium totius communionis CatJwlicae ; this is defide." Now,

the unity of the Church consists chiefly, I, in the unity of

faith (in unitate fidei), inasmuch as all the faithful, professing

the same faith, constitute but9

one Church; 2, in the unity

of charity (in unitatc caritatis, communionis), by which is

meant the submission of the faithful to their bishops, and of

the bishops and people to the Pope.10

Now, if the Pope be

the centrum unitatis fidei, and therefore charged with the

preservation of unity in matters of faith and morals, he must

be infallible;

if he is the centrum unitatis communionis, and

therefore commissioned to enforce unity in matters of disci

pline, he" mast have legislative authority, supreme and uni

versal.12

4

Phillips, Lehrb., p. 172. Ib, p. 171.

6Salzano. lib. ii., pp. 68-70.

~

Craiss., n. 684.

Cone. Vaticanum, sess. iv., cap. iii., iv.;

cfr. Craiss., 1. c.

*

Soglia,vol.

i., p. 177.

10Cfr Cone.

Vaticanum,1. c ,

cap.iii

uCfr. Salzano, 1. c., p. 69 seq

" Our Notes, p. 41.



of the Roman Pontiff. 243

468. I. Infallibility of the Roman Pontiff. That the

Sovereign Pontiff is the centrum itnitatis fidei, and therefore

vested with infallibility,is amply proved in dogmatic theo

logy ;the proofs are taken from Sacred Scripture

"

and

trad-.tion. We content ourselves here by giving the defini

tion of the Oecumenical Council of the Vatican :

M "

Itaque

nos traditioni a fidci Christianae exordio perceptae fideliter

inhaerendo, ad Dei Salvatoris nostri gloriam, religionis

Christianae exaltationem, et poputorum Christianorum salu-

tem, sacro approbante Concilio, docemus et divinitus reve-

latum dogma esse definimus Romanum Pontificem, cum ex

cathedra loquitur id est, (a) cum omnium Christianorum

pastoris et doctoris munere fungens, (b} pro suprcma sua

apostolica auctoritate, (c) doctrinam de fide vel moribus (d f

ab universa Ecclesia tenendam definit, per assistentiam di-

vinam, ipsi m B. Petro promissam, ea infallibilitate pollere.

qua divinus Redemptor Ecclesiam suam in definienda doc-

tnna de fide vel morum instructam esse voluit; ideoquc

ejusmodi Romani Pontificis definitiones ex sese, non autem

ex consensu Ecclesiae, irreformabiles esse. Si quis autem

huic nostrae definitioni contradicere, quod Deus avertat, prae-

sumpserit, anathema sit." It is therefore de fide, atpresent,"

that the Roman Pontiff, when speaking ex catJiedra, is in

fallible.

469. Q. When does the Roman Pontiff speak ex ca

thedra ?

A. Hespeaks

excathedra,

and is infallible of himself i.e.,

independently . of the consent of the Church i, when ns

Pastor and Head of the Church, and by virtue of his supreme

apostolical authority, 2, he proposes to the entire Church,

3, any doctrine concerning faith and morals, 4, to be

uMatth xvi.

; Jo. xxi.; Luc. xxii.

;cfr. Salzano, 1. c., p. 71.

14

Sess. iv., cap. iv., in fine

1&

Cfr. Craiss., n. 686.



244 On the. Rights and Prerogatives

believed under pain ofheresy."

These conditions only

are required for the validity of Pontifical decisions ex cathe

dra. Others are requisite for the licitness of such defini

tions; thus, the Pope, before giving an ex cathedra definition,

should maturely examine into the question to be defined and

consult with the cardinals;for he is merely assisted, not in

spired, bythe

HolyGhost when giving a definition ex

^cathedra." Catholics are bound to assent to these defini

tions, not only externally, but also internally ormentally."

Moreover, the primary or chief proposition of a definition

must be distinguished from propositions that are merely in

cidental, such as the arguments alleged by the Pope in sup

port of the definition. The Pope is infallible only in the

definition proper, not in the proofs alleged incidentally.

1

470. II. Legislative AutJiority of the Pope. We now come

to the second prerogative directly annexed to the primacy.

The Sovereign Pontiff, as the centrum mutatis communionu

cxteniae, is vested, as we have seen, with supreme legislative

authority over the whole Church i.e., he has, jure divino,

power to make general laws2 &

respecting the discipline of

the Church ; in other words, he can enact universal laws

relative to divine worship, sacred rites and ceremonies, the

government of the clergy, the proper administration of the

temporalities of the Church, and the like.21

Now, this

power flows directly from the primacy ;for the Church is a

visible society, has external forms of worship, and must

therefore be regulated by disciplinary laws, to be enacted by

its chief ruler, the Sovereign Pontiff. Moreover, the Pope,

"

Salzano, 1 c., p. 70. Cardinal Manning expresses the same, only in dif

ferent words. He says :

" The Pope speaks ex cathedra when he speaks

under these five conditions : i, as Supreme Teacher; 2, to the whole Church

;

3, defining a doctrine ; 4. to be held by the whole Church; . in faith and

morals." The Vatican Decrees, p. 34. New York, 1875."

Ib

18

Soglia,1. c.,

pp.185, 186.

19Salzano, 1. c., p. 71

&

Ifc - P 74-

31Cfr. Craiss.. n. 688.



of the Roman Pontiff, 245

as was seen, can make laws respecting faith and morals;he

may, & fortiori, establish uniformity of worship.

ART. II.

Rights of the Sovereign Pontiffflowing Mediately or Indirectly

from his Primacy.

471. We here observe that the rights of the Roman

Pontiff, whether they are annexed immediately or but me

diately to his supremacy, are all necessarily contained in the

primacy ;none

2

of them are accidental or of human origin,

as Febronius contends. Having premised this, we proceed

to discuss the point under consideration. The Pontiff,

viewed in his relations to the particular churches of the

world, to the bishops, or to the entire Church, has three

sorts of rights viz., i, those which refer to the various dio

ceses of the Catholic world; 2, to the bishops of Christen

dom ; 3, or to the universal Church. We shall briefly treat

of these rights.

I. Rights of the Sovereign Pontiff in relation to the various

Dioceses of Christendom.

472. These rights are reduced chiefly to four: I. Right

oj demanding an account of the state of each diocese tJirougli-

out the world (jus relationuvi}. The Pope, as we have

shown, has supreme and unappealable jurisdiction, not onlyin matters of faith and morals, but also of

discipline."It is

the duty of the Sovereign Pontiff to watch over the disci

pline of the entire Church.34 He must therefore know the

condition of all the churches or dioceses in the world.

Hence he must have the right to demand from bishops an

"

Cfr. Phillips, Lehrb., p. 172. M Salzano, lib ii., p. 74.

*"

Phillips. Kirchenrecht, vol v., 203, p. 34.



246On the Rights and Prerogatives

account of the state of their dioceses25

{jus relationum\

Bishops are therefore obliged to visit Rome in person

(visitatio liininiun S.S. apostoloruui] at certain intervals,

and to report ihe exact state of their dioceses (rflatwne*

status). The bishops of Italy and Greece must go to Rome

once every three years ;the bishops of Germany, France,

Spain, Portugal, Belgium, England,Scotland, once

everyfour years; the bishops of Ireland

(77, p. 5O2)<

f tne

rest of Europe, of North Africa, once every five years ;

finally,the bishops of America, once every ten

years."

From this right of supreme direction, inherent in the Pon

tiff,

27there follows to him the right, in the exercise of this

his office, of freely communicating with the pastors and

flocks of the whole Church.

28

II. Power to punis-li delin

quents. The Roman Pontiff, as we have shown, is vested

with the supreme law-making power in the Church. Now,

the legislative necessarily includes the executive or coactive

power ;for laws that cannot be enforced are not, properly

speaking, laws.29

III. Power to grant dispensations. A law,

to be just, should be binding on all persons within its

sphere ; yet being made for the common good i.e., for

general purposes it is not always useful or applicable in

particular cases. Hence, laws should admit30

of reasonable

exceptions or dispensations. Now, it is evident that only

those officials can suspend the force of a law in special cases,

or dispense from it, who can make the law. The Roman

Pontiff is, as was seen, the supreme law-maker in the

Church;therefore he 3I can dispense from the laws of the

Church, even those enacted by oecumenical councils.3*

But

to this the objection is made that the Pontiffs have them

selves acknowledged that they were subject to the canons,

16

Phillips, Lehrbuch, p. 173.**

Infra, n. 556.

wPhillips, Kirchenr., vol. v., p. 38. Regensburg, 1854.

18

Cone Vaticanum,scss.

iv., cap.iii.

OT

Salzano,1.

c., p, 75"

Ib., p. 76."

Phillips, Lehrb.. pp 175, 176, 178.3a

Craiss., n. 692.



Of the Roman Pontiff. 247

and therefore could not dispense from thc-in. This objection

does not hold ;for the Popes distinguish between two kinds

of canons those, namely, which relate to themselves, and

those which refer to others. They acknowledge themselves

subject to those laws of the first class which confirm a divine

or natural law;but if these laws are merely of ecclesiastical

origin, they bind the Roman Pontiffs only quoad vim dirccti-

vam, not quoad vim coactivam. Laws of the second class

i.e., those which have no reference to the Sovereign Pon

tiffsshould, as a rule, be enforced by the Popes. We say,

as a rule ; for they are dispensable,as has been shown.

33

Dispensations granted by the Sovereign Pontiffs, without

sufficient reasons,are valid,

thoughillicit.

34

ThoughPopes,

as we have just seen, cannot dispense in rebus juris divini

they may nevertheless declare that, in certain contingencies,

the jus divinum ceases to bind.39

IV. Right of receiving ap

peals from the sentences of all ecclesiastical tribunals. Man,

even in his judicial decisions, is naturally liable to error."

The remedy of appeal, therefore, from an inferior to a supe

rior judge, necessarily exists in every society. The RomanPontiff", therefore, as the supreme judge in the Church, can

receive appeals from all parts of the Catholic world. His

sentence alone is unappealable.38

2. Rig]its of the Pope respecting Bishops.

473.Christ conferred

uponPeter and his successors

power to feed and govern, not only his lambs/ .*., the

faithful but also the shepherds i.e., the bishops. The

rights of the Pontiff relative to bishops are four: 1. The

Pope, by virtue of his primacy, can create bishops and transfer

them from one place to another" The Council of Trent**

83

Salzano, 1 c., pp. 76, 77.

*Phillips, Lehrb., p. i?9-

"

Craiss., n. 693."

Salzano, 1. c., p. 77-"

Phillips, 1. c. ( p. 180.

*S;.lzano. 1 c., p 85.

&

Sess. xxiii., cap. iv. can. 8.



248 On the Rights and Prerogatives

says :

"

If any one saith that the bishops, who are assumed

[i.e., appointed] by authority of the Roman Pontiff, are not

legitimate and true bishops, but are a human figment, let

him be anathema." Now, if the Pope alone can appoint

bishops, it follows that he alone can transfer them from on

see to another/1

II. Right of reserving cases. It is a dis

puted questionwhether

bishopsreceive

jurisdictionimme

diately42from the Pope or from God. One thing, however,

is certain namely, the jurisdiction of bishops, so far as its

exercise is concerned, depends43

upon the Sovereign Pon

tiff, whose privilege it is to assign to bishops their subjects.

Hence, the Pope may restrict the authority of bishops, and

reserve to himself the absolution from the more grievous

crimes.

44

III. The Pontiff, by virtue of his primacy, has the

right to depose bishops from their sees" and to reinstate them.

This follows from what has been said. IV. Finally, the Pope

has the right to convoke, preside over, and confirm oecumenical

councils. This proposition needs no proof. Bishops, there

fore, are obliged, if not lawfully48

hindered, to assist at these

councils. The body of bishops, when separated from the

Pontiff, has no supreme47

power in the Church. Hence, it

is absurd to say that an oecumenical council4S

is superior to

the Pope ;for no council is oecumenical except when

united49

to the Pope.

3. Rights of the Pontiff relative to the Entire Church, or tht

Church as a Whole.

474. The rights of the Roman Pontiff, falling under this

head and emanating mediately from his primacy, may be re

duced to four, discussed under the following heads : I. Di-

41

Phillips, 1. c., p. 188.*

Cfr. our Notes, p. 77

43Salzano, 1. c.. p. 86

;cfr. Craiss., n. 690, 868.

44Cone. Tiid., sess. xiv., cap vii.

4*

Salzano, 1. c., p. 87

*

Ib.

*

Craiss.,n.

690.

*"

Ib., 691.**

Salzano, 1. c., p. 90 ;cfr. Cone. Vaticanum, sess. iv., c. iii.




vision and union of dioceses. I. The Pope alone can divide

a diocese into two or more. Dioceses are divided for va

rious reasons v.g., when they are vast.60 As a rule, the

bishop of the diocese to be divided is consulted6I

as to the

division ; his consent, however, is not essential. 2. The

Holy See alone can unite two or more dioceses into one.

Dioceses are united for different reasons v.g., when they

are small." II. Canonisation of saints and uniformity of

liturgy. Both these are of interest to all Christendom.

Hence, it is the prerogative of the Roman Pontiff to enact

laws in regard to the canonization of saints;he may also

correct the Roman Missal and Breviary, and, in general,

ordain all that pertains to the sacred liturgy.63

III. Reli

gious orders. These, too, have a certain relation to the

whole Church; hence, they are instituted/

4

approved, and,

if need be, suppressed, by the Pontiff. IV. Plenary indul

gences. The Roman Pontiff, as head of the Church, is the

supreme dispenser of her treasures;he alone, therefore, can

grant plenary indulgences for the entire Church."

475. Rights of the Sovereign Pontiffs relative to the Causae

Majores. It is certain that all causae majores are reserved to

the Holy See. Now, by causae majores we mean, in general,

all ecclesiastical matters of more than ordinary importance

or difficulty. Such matters may be of a graver character,

either intrinsically i.e., by their very nature, v.g., questions

of faith or general discipline ;or extrinsically i.e., because

of certaincircumstances, v.g.,

difficulties betweenbishops

and the civil power.&

Now, all matters of this kind are to

be referred by bishops to the Holy See, and determined

solely by it. For the Pontiff, as we have shown, has juris-

dictio immediata over the entire Church : hence, he can

reserve in fact, has reserved to himself the power to

Salzano. lib. ii., p. 88."

Phillips, Lehrb.. p. 185."

Ib

Sal/.ano, 1. c . p. 8q.M

Ib."

Ib.M

Phillip?, I. c.t p. 180



250 On the RigJits and Prerogatives

decide all matters of greater moment. Canonists"

disagree

as to what matters are precisely to be considered causae ma-

Jores. The Potestas Ordinaria and Extraordinaria of the

Roman Pontiff. When the Roman Pontiff accommodates

himself in his proceedings to the rules established by his

predecessors or to the decrees of oecumenical councils, he

is said to proceed de jure ordinario de potestate ordinaria ;

but when he does not observe these prescriptions, he acts

dc jure extraordinario. In derogating, however, from the

Council of Trent, the Pope does not act de potestate extra-

ordinaiia; for this CouncilM

itself says: "All things-which

have been ordained in this sacred Council have been so de

creed as that the authority of the Apostolic See is untouched

thereby

1

ART. III.

Rights of the Pope as Bishop, Metropolitan, Primate, and

Patriarch.

476. The city of Rome and the surrounding country

within a circumference of forty miles forms the diocese" ofthe Pope, in his capacity .of bishop. This diocese is governed by the Pontiff in the same manner as other dioceses are

ruled by other bishops. The Pope, however, does not per

sonally or directly administer the diocese of Rome, but ap

points one of the cardinals resident in Rome to take direct

charge of it, and act in his stead or as his vicar. This

cardinal-vicar is assisted in the administration of the diocese

by a coadjutor or suffragan bishop (yice-gerente], who in turn

is aided by a number of inferior officials/1 The Pope is

also metropolitan of ten (civil) suburbicarian provinces,"Pri

mate of Italy, and Patriarch of the West," and therefore, in


58Ib., n. 695.

69 Sess. xxv., cap. 21, De Ref.

60

Phillips,

1. c.,

pp.201, 202. *

Ib.,p. 203.

62Craiss., n. 679.

63 Bened. XIV., De Syn., lib. ii., cap. ii.



Of the Roman Pontiff.2 5 i

these various capacities, exercises the prerogatives attach

ing to these several dignities.

SECTION II.

On the Rights of the Supreme Pontiffs in"

Temporal Matters.

ART. I.

Vai ious Opinions on this Htad Distinction between the Direct

and Indirect Power of Pontiffs in Temporal Things.

477. I. There are four different opinions64

respecting

the

power

of the

Popes

in

temporalthings: I. The first

holds that the Sovereign Pontiff, as such, has, jure divino,

absolute power over the whole world, in political as well as

ecclesiastical affairs. 2. The second, held by Calvinists and

other heretics, runs rn the opposite extreme, and pretends

(a) that the Sovereign Pontiff has no temporal power what

ever; (d) that neither Popes nor bishops had any right to ac

cept of dominion overcities

or states, the temporal and spiritual power being.Jure divine, not unitable in the same person.

3. The tJdrd, advanced by Bellarmine and others, maintains

that the Pope has, jure divino, only spiritual, but no direct

or immediate temporal, power ; that, however, by virtue of

his spiritual authority, he is possessed of power, indirect in

deed, but nevertheless supreme, in the temporal concerns of

Christian rulers and peoples ; that he may, therefore, deposeChristian sovereigns, should the spiritual welfare of a nation

so demand. Thus, as a matter, of fact, Pope Innocent IV.,

in pronouncing sentence of deposition against Frederic II.,

explicitly says that he deposes the emperor auctoritate apos-

tolica ct vi claviunt. 4. The fourth opinion holds that the

Sovereign Pontiff has full spiritual authority over princes no

**Bouvier, Tract, de V- ra Ecclesia, part iii p. ^27 vol. i. Parisiis, 18-14.




less than over the faithful;that therefore he has the right to

teach and instruct them in their respective duties, to correct

and inflict spiritual punishments upon both rulers and peo

pies ;but that,jure divine, he has no power, as asserted by Bel

larmine, whether direct or indirect, in the temporal affairs

of Catholic sovereigns or peoples. We say, as asserted bv

Bellarmine;for the advocates of this

opinion, by giving thePope full power to correct princes and peoples, necessarily

attribute to him an indirect power in temporal things; they

deny, however, that this potcstcts indirecta in tempuralia in

cludes the deposing power, as maintained by Bellarmine. .

II. The first opinion is untenable, and is refuted by Bellar

mine himself; the second is heretical;"

the third and fourth

seem to differ chiefly as to the deposing power of the Popes,but agree in granting that the Roman Pontiff has an indirect

power in temporal things ;both may be lawfully held.

Before we proceed to explain our own views in this matter,

and to show the relation of Church and state, we shall point

out, for the better understanding of the subject under con

sideration, the difference between the direct and the indirect

power in temporal things.

478. Q. What is meant by direct and indirect power in

temporal affairs ?

A. We have already shown66

what things are to be con

sidered temporal, what spiritual, and what mixed questions

Now, it is certain that temporal things are not so exclusively

adaptable to the wants of this life6T

as not to be either con

ducive or injurious to the salvation of the soul. But it i.

also certain that the Church, in order to fulfil her mission^

which is to save men, must have power to remove obstacles

in the way of salvation. The Church, therefore, or the

Pope has authority in temporal matters, not indeed directly

-re., not in temporal matters, as such, or in themselves (po-

*Cfr. Traiss . n. 696.

"

Supra, n. 204-207."

Craiss. n 697.




testas directa ct immediata in res t^mporales) but indirectly

i.e., in temporal matters, so far as they relate to the salva

tion of the soul (potcstas indirccta in teuiporalid) ;in other

words, the Pope has power to overrule, correct, or set aside

those temporal means which hinder men from attaining to

eternal happiness. Having premised this, we proceed to

our thesis proper.

ART. II.

Relation of ChurcJi and State.

479. From what has been said we infer: I. In all things

which are

purely temporal,

and lie extra

finem

Ecclesiae out

side of the end of the Church it (i.e., the Church) neither

claims nor has jurisdiction.2. In all things which promote

or hinder the eternal happiness of men the Church has a

power to judge and to enforce." We now apply these

principles to the relations of the spiritual and civil powers

i.e., between Church and state by laying down these pro

positions:

480. Proposition I. In tilings temporal, and in respect to the

temporal end (of government}, tJie ChurcJi has no power over the

state. The proof of this proposition is that all things

merely temporal are beside (practer fincni Ecclesiae] or out

side of the end of the Church. Now, it is a general rule

that no society has power in those things which are out of

its own proper end. Hence, the civil society or the state,

even though every member of it be Catholic,70

is not subject

to the Church, but plainly independent in temporal things

which regard its temporal end."

481. Proposition II. In whatsoever tilings, whether essen

tially or by accident, the spiritual end that is, the end of the

88

Manning,The Vatican Decrees,

p. 55.69Card. Tarqu., Jur. Eccl. Publ. Inst., n. 54 pp. 55, 56.

wIb., p. 5&

71Cfr. Manning, 1. c., pp. 70, 71.



254 On the Right* and Prerogatives

Church is necessarily involved, in those tilings, though they bt

temporal, the Church may by right exert its poiver, and the civil

state ought to yield. In this proposition is contained the full

explanation of the indirect spiritual power of the Church

over the state.73 The proposition is proved : I. From rca-

son. Either the Church has an indirect power over the

state, or the state has an indirect power over the Church.

There, is no alternative. For, as experience teaches, con

flicts may arise between Church and state.74

Now, in any

question as to the competence of the two powers,75

either

there must be some judge to decide what does and what

does not fall within their respective spheres, or they are de

livered over to perpetual doubt and to perpetual conflict.

But who can definewhat is or is not within the

jurisdictionof the Church in faith and morals, except a judge who knows

what the sphere of faith and morals contains and how far it

extends?76

.It is clear that the civil power cannot define

how far the circumference of faith and morals extends. To

do this it must know the whole deposit of explicit and im

plicitfaith. Therefore, the Church alone can fix the limits

}f its jurisdiction ; and if the Church can fix the limits of its

own jurisdiction, it can fix the limits of all other jurisdic

tionat least, so as to warn it off its own domain.77

Hence,

the Church is supreme in matters of religion and con

science : she knows the limits of her own jurisdiction, and,

therefore, also the limits of the competence of the civil

power. Again, if it be said that the state is altogether inde

pendent of the Church, it would follow78

that the state

would also be independent of the law of God in things tem

poral ;for the divine law must be promulgated by the

Church. It is unmeaning to say that princes have no supe-

"

Card. Tarqu., 1. c., lib. i., p. 56, n. 55.7S

Manning, 1. c., pp. 70, 7*.

*Craiss., n. 698.

TSCfr. Phillips, Kirchenr., vol. ii., pp. 546, 547

"

Manning,1.

c., pp. 54, 55-

"

cfr -

Syllab.1864, prop. 19, 20, 39, 42, 54-

&

Craiss.. n. 698.



of the RomanPontiff. 255

rior but the law of God;

79

for a law is no superior without

an authority to judge and to apply it. II. We next prove

our thesis from authority. We refer to the famous bull

Unam Sanctam, issued by Pope Boniface VIII. in 1302.

This bull declares that there is but one true Church,80

and

therefore but one head of the Church the Roman Pontiff;

that there are two swords i.e., two powers the spiritual

and the temporal ;the latter must be subject to the former.

The bull finally winds up with this definition :

" And this

we declare, affirm, define (definimus), and pronounce, that it

is necessary for the salvation of every human creature that

he should be subject to the Roman Pontiff."91

This is un

doubtedly a de fide definition i.e., an utterance ex cathe

dra.** In fact, the bull, though occasioned by and published

during the contest between Boniface VIII. and Philip the

Fair, King of France who held that he was in no sense sub

ject to the Roman Pontiff had for its object, as is evident

from its whole tenor and wording, this : to define dogmati

cally the relation of the Church to the state83

in general

thatis, universally,

notmerely

the relations between the

Church and the particular state or nation France. Now,

what is the meaning of this de fide definition ? There

are two interpretations : one, given by the enemies of the

Papacy, is that the Pope, in this bull, claims,4

not mere

ly an indirect, but a direct and absolute, power over the

state, thus completely subordinating it to the Church;

8

that is, subjecting it to the Church, even in purely tem

poral tilings. This explanation, given formerly by the

partisans of Philip the Fair, by the Regalists in the

reign of Louis XIV., and at present by Janus, Dr. Schulte,

78

Manning, 1. c., p. 51.

80

Phillips, 1. c., vol. iii., pp. 256, 257 ;cfr. Darras, Hist., vol. Hi., p. 454.

*

Fessler, True and False Infallibility, p. 81.wManning, 1. c., p. 57

"*

Phillips, 1. c,vol. iii., pp. 255, 256.

**Cfr. ib., p. 206.

"

Cfr. Manning, 1. c, pp. 61-64.




the Old Catholics, and the opponents of the Papal infal

libilityin general, is designed to throw odium upon the

Holy See and arouse the passions of men, especially of

governments, against the lawful authority of the Sovereign

Pontiffs. The second or Catholic interpretation is that the

Church, and therefore the Pope, has indirect authority over

the state;that therefore the State is subject to the Church in

temporal things, so far as they relate to eternal salvation or in

volve sin. Thus, the illustrious Bishop Fessler,86

Secretary

to the Vatican Council, says that this bull affirms merely

that Christian rulers are subject to the Pope, as head of tJie

ChurcJi but not in purely temporal things ;

"

stillless,"

continues Fessler,"

does it [the bull] say (as Dr. Schulte

formulates his secondproposition)

that the

temporal, powermust act unconditionally in subordination to thespiritual."

That this is the correct interpretation appears, I, from the

whole tenor of the bull itself; for it expressly declares that

the spiritual and temporal powers are distinct one from the

other;

that the former is to be used by the latter for the

Church. Again it says :

" The spiritual power (i.e.,the

Church) has to instruct and judge the earthly power, if it

be not good. If, therefore, the earthly power deviates (from

its end), it will be judged by thespiritual."

"

2. Again, be

fore issuing the bull Unam Sanctam, Pope Boniface VIII.

had already declared, in a consistory90

held in 1302, that he

had never dreamt of usurping upon the authority of the

King (of France)91

i.e., of assuming any power over the

state in purely temporal matters ; but that he had declared,

in the bull Ausculta Fill (A.D. 1301), the King (of France) to

be, like any other Christian, subject to him only in regard to

mi. It is therefore de fide that the Church, and therefore

&

L. c., p. 82.

87Cfr. Phillips, I. c., p. 256 ;

cfr. Walter, Lehrb., 42, p. 75, note (a). Bonn,

.839.&

Ap. Manning, 1. c., p. 60.&

Cfr. Phillips, 1. c., p. 25

**Ib.

, p. 254.JI

Manning, I. c, p. 62.




llie Pope, has indirect power over the state, and that conse-

quently the state, in temporal things that involve sin, is sub

ject to the Church.

482. From what has been said we infer: i. The authority

of princes and the allegiance ot subjects in the civil state of

nature are of divine ordinance; and, therefore, so long as

princes and their laws are in conformity to the law of God,

the Church has no jurisdiction against them nor over

them.9 &

2. If princes and their laws deviate from the law

of God, the Church has authority from God to judge of that

deviation, and to oblige to its correction.93

3. This au

thority of the Church is not direct in its incidence on tem

poral things, but only indirect. 4. This indirect power of

the Church over the state is inherent in the divine constitu

tion and commission of the Church;but its exercise in the

world depends on certain moral and material conditions by

which alone its exercise is rendered either possible orjust."

This last conclusion is carefully to be borne in mind;

it

shows that, until a Christian world and Christian rulers ex

isted,95there was no subject or matcria apta for the exercise

of the supreme judicial authority of the Church in temporal

things. So much for the relation of the Church to the

infidel state. When a Christian world came into existence,

the civil society of man became subject to the spiritual

direction of the Church. So long, however, as individuals

only subjected themselves, one by one, to its authority, the

conditions necessaryfor the exercise of its office were not

fully present. The Church guided men, one by one, to

their eternal end;but as yet the collective society of nations

ivas not subject to its guidance. It is only when nations

and kingdoms become socially subject to the supreme doc

trinal and judicial authority of the Church that the con

ditions of its exercise are verified. So much for the relation

wManning, 1. c., p. 56.

"

Ib.M

Ib.& 5

Ib., p. 81.




of the Church to the Catholic State.06

At. present the world

has for the most part practically withdrawn itself socially

as a whole,97and in the public life of nations, from the unity

and the jurisdiction of the Church. Now, the Church,

it is true, never loses its jurisdiction in radice over the

baptized ;but unless the moral conditions justifying its

exercise be

present,

it neverputs

it forth in

regardto

heretics or the heretical state. So much for the relation

of the Church to the heretical state. In this entire question,

therefore, the authority itself of the Church must be distin

guished from its exercise.

ART. Ill,

The Deposing Power.

483. This question is at present of little or no practical

consequence ; for, according to all canonists and theolo

gians,88

Popes can depose Catholic princes only i.e., princes

who are Catholics not only as individuals, but as rulers;in

other words, only those princes who are at the head ofCatholic nations, where the Catholic religion is the only re

ligion recognized by law. By what right was the deposing

power exercised by the Sovereign Pontiffs ? There are two

opinions among Catnolic writers : one holds that it was ex

ercised merely by virtue ofthejuspublicum of the mediaeval

ages ;the other, that the deposing power, as exercised by

Pope Gregory VII. and other Pontiffs, is inherent in the

primacy, being included in the indirect power of the Popein temporal things.

89

This opinion is thus expressed in our

article on Gregory VII., published in Brownson s Quarterly

Review :""

" The power itself[i.e., of deposing princes] in

Manning, 1. c., p. 82.Ib., p. 87.

88

Bouvier,Instit.

Theolog.,vol.

i., pp. 432, 436, 437.*

Cfr. Manning, 1. c.. p. 77. April, 1875, p. 211.



of tkc Roman Pontiff. 250

radice, we hold, is inherent in the Papacy ; the power in

actu, or its exercise, depends upon external circumstances."

The moral conditions which justified the deposition of

princes, when the world was Catholic, have practically

ceased to exist, now that the world has practically, accord

ing to the secular social regime, ceased to be Catholic, and

even Christian. 101 While, therefore, in former times, the

exercise of the deposing power was legitimate,102

it would

not be legitimate at present." Not one of the Papal bulls

deposing sovereigns has the faintest trace ot being a de fide

definition;

104

they are merely penal sentences. Hence it is,

as Pope Pius IX. himself, in one of his discourses,105

says,

"that the right of deposing princes has nothing to do with

the Pontifical infallibility ; neither does it flow from the

infallibility, but from the authority, of the Pontiff." Of

course, a Catholic is bound not only to believe what

the Pope defines ex cathedra, but also to accept and

obey what he otherwise commands. We said above

that the world, according to the secular social regime,5 O

hadpractically

ceased to beCatholic,

or evenChristian.

For according to the ecclesiastical social re"<fime it is stillo o

formally Catholic, and there is nothing to prevent the Pope

from blessing as formerly the faithful not merely indivi

dually, but the whole world collectively (urbi et orbi\

Hence it were scarcely correct to assert absolutely that the

world has now ceased to be Catholic, or even Christian.

ART. IV.

Of the Temporal Principality of the Roman Pontiffs.

484. The primacy is essentially a spiritual office, and has

not, of divine right, any temporal appendage ;

10

yet the

101

Manrrn?, 1. c., p. 87.102

Ib., p. 84.IOS

Fessler, 1. c., pp. 85, 86.

104

Ib., pp. 86, 87.105

Discorsi di Pio IX., July 20, 1871. Rome, 1872.

106Cfr. Manning, 1. c., pp. 85, 86.

107

Kenrick, Primacy, p. 218. Philadelphia, 1845.



26o On tke Rigfits and Prerogatives

Pope is, or rather was, sovereign of a small principality in

Italy, designated the Patrimony of St. Peter or the States

of the Church. Tnis temporal dominion, it is true, was

not bestowed by God upon the Pope in the beginning ;

""

ior, even toward the close of the sixth century, the Pontiffs

were not as yet independent rulers ol temporal dominions.10

But when the Roman Empire was overthrown and dividedinto several kingdoms,

110

then it was that the Sovereign

Pontiffs obtained their temporal principality,"

1

divinae pro-

I identiae consilio,1

This civil dominion of the Pope, whether

acquired by the munificence of princes or the voluntary

submission of peoples,113

though not essential to the primacy,

is nevertheless very useful, nay, in the present state of

things,114 in a measure necessary, to the free exercise of the

prerogatives of the Pope as head of the Church.11

Princes,

in fact, would scarcely be willing to obey a Pontiff placed

under the civil power of another ruler.116

Napoleon I. said :

We respect the spiritual authority of the Pontiff precisely

because he resides neither in Madrid nor in Vienna, nor in

any other state, but in Rome. Pius IX.117

himself points

out how fitting it is in every respect that no occasion should

exist for suspecting that the Pope, in the administration of

the Church,118

may sometimes act under the influence of the

civil power or of political parties. Now, such suspicions

would be unavoidable should the Pontiff be the subject of

some civil ruler. The temporal principalityof the Popes

has existed alreadyeleven centuries, and thus

precedesby

a long lapse of time every existing sovereignty. There is,

it is true, no divine guarantee that this power shall conti-

198 Cone. PI. Bait. II., n. 47.

110Kenrick, 1. c., p. 223.

mAp. Cone. PI. Bait. II., n. 47-

i:* Cone. PI Bait. II., n. 47.

118

Soglia. 1. c., p- 254.118

Cfr. Kenrick, 1. c., p. 228.

100

Phillips, Lehrb., pp. 199,200.

111

Soglia, vol. i., pp. 254, 255.

113Craiss., n. 701.

115Cfr. Syllab., prop. 75, 76-

117

Litterae,March

26,

1860,




nue;

"

it has been treacherously wrested from the present

Pontiff by the Italian government. That, however, it will

revert to the Popes we have no doubt. Napoleon I., too,

took these possessions from the aged Pius Vli. Yet Napoleon s empire has since vanished like a dream, while the

patrimonyof St. Peter

passed againinto the hands of the

Pontiffs.

485. The Council of Baltimoreiao

directs that an annual

collection be taken up for the Holy Father in every diocese

of the country on the Sunday within the octave of the Feast

of Saint Peter and Saint Paul, or such other Sunday as the

ordinary may direct.

U9 Cfr. Kenrick, 1. c., p. 228.uo PI. II.. n. 48.



CHAPTER III.

ON THE ASSISTANTS OR MINISTERS OF THE SOVEREIGN PON

TIFF THE " CURIA ROMANA."

486. By the Curia Romano, we mean, in a strict sense,

only those officials whom the Sovereign Pontiff regularly

makes use of to assist him in the government of the univer

sal Church ;2

in a broad sense, also those who aid the Popein his capacity of Bishop of Rome, Metropolitan, or Pri

mate.3

All these assistants are appointed by the Pope.4

The persons composing the Court of Rome (Curia Romano]

are divided into three classes, designated respectively Cardi

nals of the Holy Roman Church (Cardinalcs S. R..),

Pre

lates of the Holy Roman Church (Praelatt S. R.."),

and

curiales in the strict sense of the term. The latter (curiales]

are made up of the various magistrates not in prelatical dig

nity, of advocates and procurators, solicitors and agents, of

notaries, and all thosf* who form the cortege of the Pope.6

These various ministers are either intra curiain v.g., cardi

nals or extra curiain v.g., legates, nuncios, and the like*

We shall, therefore, divide this chapter into two sections;

one treating of the Papal assistants intra curiam, the othe

of those extra curiam.

1


Ib Ib.

2Cfr. Phillips, Kirchenrecht, vol. vi., p.

Ib., p. 10. Craiss., n. 701, 704

262



Assistants of the Sovereign Pontiff. 263

SECTION I.

Of the Assistants of the Sovereign Pontiff"

intra curiam."

ART. 1.

Of Cardinals.

I. Origin, Appointment, and Number of Cardinals.

487. Origin. Cardinals are the immediate7

counsellors or

advisers of the Pope, and form, so to speak, the senate of

the Roman Church.8

Hence, they are compared to the

seventy ancients appointed to assist Moses, and to the apos

tles chosen to aid our Lord. The College of Cardinals is

thus defined :

" Clericorum coetus ad auxiliandum Romano

Pontifici in Ecclesiae regimine, sede plena, et ad supplen

dum eundem, sede vacante, institutus."

488. Q. Are cardinals of divine or human institution ?

A. Thequestion

is controverted.&

It were difficult tc

show that the dignity of cardinals, as at present understood

is not of merely ecclesiastical institution.11 The name itself

of cardinal does not seem to have been used before the time

of Pope St. Sylvester.12 At first it was applied to all ecclesi

astics permanently in charge of churches.13

Pope Pius V. in

1 567 ordained that it should henceforth be exclusively ap

plied to the cardinals of the RomanChurch.

14

Yet in

Naples, even at present, fourteen canons are named cardi

nals.16

In several other dioceses, also, some of the canons

are still called cardinals." Cardinals are so called from the

word cardo, a hinge ; for, says Pope Eugenius IV.,17

"

sicut

Phillips, Kirchenr., 1. c., p. 10.&

Craiss., n. 702.*

Ib

"

Ib., n. 703."

Cfr. Ferraris, V. Cardinalis, art i., n. i, 2.w

Ib., n. 3, 4.

15

Soglia, vol. i., p. 257.M Ferraris, 1. c., n. 6.

1S

Salzano, lib. ii., p. 9^

*Craiss. n. 704.

"

Const. Non Med ocri, 14.



264 On the Assistants or Ministers

super cardinem volvitur ostium domus, ila super eus \cardt

nalcs\ sedis apostolicae ostiumquiescit." The cardinals are

so to say, the hinges upon which the government of the en

tire Church turns.18

489. Mode of Appointment of Cardinals. i. The manner

of creating cardinals underwent change from time to time.

Several things prescribed in the Roman ceremonial are

now obsolete. The Sovereign Pontiff has the sole and free

power of appointment to the cardinalate;

in making ap

pointments he is not obliged to use any specific formula,

though the following is given in the Roman ceremonial :

"

Auctoritate Dei Patris . . . assumimus N. in presbyte-

rum vel diaconum S. R. Ecclesiae cardinalem."I9

2. If the

newly-appointed

cardinal is in Rome, he

proceedsto the

Apostolic Palace, where one of the old cardinals presents

him to the Holy Father, who then gives him the red cap

(birreturn rubruui), and, in a subsequent public consistory,

also the red hat (galerum rubrum}. The ceremony of

closing and opening the mouth, of giving the ring and as

signing the title, takes place in a later consistory. 3. To

cardinals elect not living in Rome

21

the red cap or beretta

only is sent, and they must promise on oath to visit the

Holy Father within a year, so that the other ceremonies of

their elevation may take place. 4. Cardinals, at present, ob

tain all the rights of cardinals the moment they are appoint

ed in secret consistory, even before they are invested with

any of the insignia of the cardinalate. Hence, the above

ceremonies namely, the imposing of the red cap and hat,

etc. are not absolutely necessary."

490. Q. What qualifications are required for the cardi-

nalate ?

A. i. The same as those prescribed by the Council of

18

Ferraris, 1. c., n. 8.&

Ap. ib., n. 9-13. Phillips, Lehrb., p. 210,

"*

Ib. ** Ferraris, 1. c., n. 20-24.



of fie Sovereign Pontiff. 265

Trent2

for the episcopal dignity. Hence, only those should

be made cardinals who have the purity of morals, age,

learning, and other qualifications required by the Council of

Trent for bishops. Only such persons as are of the must

exalted merit should be raised to the cardinalate. 2. The

Pope should,24

as far as it can be conveniently done, select

the cardinals out of all the nations of Christendom. 3.

Not less than four should be taken from the regular and

mendicant orders.35

For the other qualifications, see Fer

raris.28

491. Orders of Cardinals. Cardinals are divided into the

three orders of bishops, priests, and deacons." The origin

of this classification dates far back. Thus, i, the order of

cardinal-priests seems to have originated in this manner:

Pope St. Evaristus, in the first century of the Church, estab

lished seven titles or churches, which were entrusted to the

care of seven priests, who there administered the sacra

ments, proprio Jtire and who were afterwards called cardi

nal priests. 2. The origin of cardinal-deacons is this:" To

he seven priests just mentioned were associated seven dea

cons (diaconi, regionarii], so called30

because they presided

over the seven diqconiae i.e., hospitals, and hospices or

houses, situate in the different quarters of Rome, where

orphans, widows, and the poor in general were received

and supported out of the patrimony of the Church. The

erection of these diaconiae, to which chapels were also at

tached, is ascribed

by

the Liber Pontificalis to Pope Clement

I. (91-100). These deacons were afterwards termed cardi

nal-deacons. 3. The order of cardinal-bishops came into

existence in the eighth or, according to some,31

in the

eleventh century, when the Sovereign Pontiffs appointed

23Sess. xxiv., cap. i., de Ref.

MIb.

MSixtus V., Const. Postquam

28V. Cardinalis, art. i., n 24-38.

*Phillips, Lehrb., p. 209.

&

SalzanO; lib. ii., p. 100.29

Ib.

*

Phillips. Kirchenr., vol. vi.. pp. 65-77."

Soglia, vol. i., p 257.




the seven suburban bishops of Rome as their assistants in

the government of the entire Church.

492. Number of Cardinals. The number of cardinals has,

in the course of time, suffered frequent changes.32

In the

time of Pope Paschal II. there were ninety cardinals. Pope

Sixtus V.:a

ordained that their number should not exceed

seventy. Nor have any Popes, from the time of Sixtus V.

to the present day, departed from this rule.34 Of this num

ber six are cardinal-bishops, fifty cardinal-priests, and four

teen cardinal-deacons.311 We observe here, there is a mate

rial difference between a bishop who is made a cardinal and

a cardinal-bishop. Only the six bishops of the suburbicary

dioceses (Ecclesiae suburbicariac] of Rome are cardinal-

bishops,

36or

bishops

of the Roman Church. All other car

dinals, even though bishops by consecration and in charge

of dioceses, are but cardinal-priests, or, as the case may be,

cardinal-deacons ; they are bishops, indeed, of their respec

tive dioceses, but only priests or deacons of the Roman

Church.37

2. Rights and Duties of Cardinals.

493. I. Dignity and Rig/its of Cardinals. The cardinal-

ate is, after the Papal, the highest dignity in the Church.31

Being the electors of the Sovereign Pontiff sede vacante, and

his counsellors39

sede plena, the cardinals take precedence of

even patriarchs, metropolitans, and primates.48

The reason

is that priority of rank is regulated, not by the ordo, but by

one s office and jurisdiction Now, cardinals have greater

31Phillips, Lehrb., p. 209.

33Const. Postquam ; cfr. Craiss., n. 708.

34Ferraris, 1. c., n. 40.

14Salzano, 1. c., p. 100

;cfr. De Luise Codex Can. Eccl., p. 14. Neapoli,

1873.3

Cfr. Craiss., n. 708."

Salzano, 1. c., p. 100.

38Ferraris, V. Cardinalis, art. ii., n. T.

**Devoti, Jib. i., tit. iii., sect, ii., n. 22 seq.

Phillips, Kirchenr., vol. vi., pp. 236-263. Ferraris, I. c., n. 2-5-



of the Sovereign Pontiff. 267

junsdiitio than bishops ; for, together with the Pope, they

have charge, not of one diocese each, as other bishops, biU

of all the dioceses of the Catholic world." Cardinals are,

moreover, Roman princes" nay, arc considered princes of

the blood.44

494. II. Duties of Cardinal* .- -Their duties regard either

their own churches or titles (titnli) or the entire ChurchI. Duties of Cardinals relatii.j to their Titles. I. Cardinals

have ample jurisdiction m all matters relating to the

management and ecclesiastical discipline of their titular

churches;

45but they are no longer, as formerly, vested with

jurisdictio quasi-episcopalis4 *

in their titles. 2. All cardinals

not having dioceses out of Rome are bound to reside in

their titles that is, in Rome. 47 Cardinals who are bishops

or archbishops of dioceses out of Rome must reside in their

respective sees." The suburbicary cardinal-bishops, how

ever,4 &

are not obliged to reside in their dioceses. 3. No

cardinal is allowed to leave Rome without permission from

the Holy Father;

50

this applies even to cardinals who are

ordinaries of dioceses, when they visit Rome.61

2. Duties of

Cardinals relative to the ivJwlc CliurcJi. I. Sede plena i.e.,

42

Soglia, vol. L, p. 259."

Phillips, 1. c. . p. 281."

Salzano, I.e., p. IO2.

45Hence, cardinal priests and deacons can visit their titles and see that

everything is done in accordance with the discipline of the Church v.g., see

that the rubrics are observed. Moreover, they can, in their titles, make use

of the pontifical insignia, give the episcopal blessing, and confer tonsure and

minor orders upon members of their household ( familiaribus). We have said,

cardinal priests and deacons; for the cardinal-bishops of the six suburban sees

near Rome have no titular churches in Rome, and therefore cannot exercise

the above rights in any of the churches of Rome, save by special leave from

the cardinal-vicar. The authority of cardinals in their titles, being at present

restricted to matters relating to the sen>itinm of their titles and the observance

of ecclesiastical discipline, can scarcely be called jnrisdictio quasi-episcopalis.

Ferraris, V. Cardinalis, art. iii., Novae Addit., n. 3.

^Craiss., n. 710.41


48Ferraris, 1. c., art. iii., n. 28.

29.

49

Ib.,n.

33.MPhillips, Kirchenr., 1. c., p. 236.

51Craiss., n. 710.



268 On the Assistants 01 Ministers

during the lifetime of the Pope the cardinals iorm the

senate," chapter, or council of the Pope, and upon their ad

vice to the most holy Roman Pontiff the administration of

the universal Church depends.53

II. Sede vacante i.e., dur

ing the vacancy of the Pontifical chair i, the defence, and,

in a measure, the administration, ad interim, of the Church,

devolve upon them." However, the jurisdiction strictly or

properly belonging to the Pontiff, being attached to his per

son/6

does not pass to the Sacred College.58

Hence, the

cardinals cannot, sede vacante, enact general laws," appoint,

confirm, or depose bishops.8

2. The faculties of the con

gregations or permanent committees of cardinals, being

ordinary, are consequently perpetual,69

and do not lapse

with the death of the Pope ; they should, however, Ije dor

mant during the conclave as to those matters which are of

greater importance, and which are, on that account,60

usual

ly attended to by the cardinals personally, not merely by

their secretaries. 3. The right to elect the new Pope be

longs exclusively to the Sacred College. Cardinals who are

ordinaries of dioceses are bound to proceed to the conclave

at the death of the

Pope;

theymust return to their dioceses

two months after the election and consecration of the Pon

tiff."

495. III. Insignia of Cardinals, These consist chiefly, I,

of the red hat {galerns rnbeus] given them by Pope Innocent

IV. 2. The red cap (birretum rubruni) bestowed by Paul

IV. 3. The sacred purple, which was the distinctive dress of

the emperors: it came to be worn by all the cardinals from

the time of Boniface VIII.82

Only those cardinals who are

taken from religious communities retain in their dress the

color of their order. Cardinals, however,83

of the Society

wSoglia, vol. i., p. 259.

" Cone. Trid., sess. xxv., cap. i., d. RM

Ferraris, 1. c., art. v., n. 23."

Ib., n. 30."

Soglia, 1. c , p. 261

"

Ib.M

Ferraris, I.e., n. 24-27.69

Ib., n. 43.&

Ib., n. 45-47.

1Ib., n. 4. M Phillips, Lehrb., pp. 210, 211.

"

Craiss., n. 716




of Jesus dress like secular cardinals. 4. Urban VIII." gave

cardinals the title eminentissimus^ eminentia vestra. The coat

of arms of cardinals should be surmounted by a cardinal s

hat and fifteen tassels (fiocci\ but not by a secular crown,

even though they are members of royal or imperial fami

lies."

3. The College of Cardinals as a Corporation.

496. The College of Cardinals, like other cathedral chap

ters, is a corporation,66

and, as such, has its officers, rights,

and duties. Its chief officers are: I. The Decanus" S. Col-

legii.The dean is the head or president of the College of

Cardinals.66

This dignity, upon its vacancy, falls, by what

is styled the///.y optandi to the oldest of the cardinals, whe

ther he resides in the Curia or is absent from it ex publica

causa"(z, p. 503). 2. The Cardinalis Camerarius Sacri Col-

legii. This dignitary administers the revenues of the Sacred

College. He is assisted in his duties by several subordinate

officials." 3.The Secretarius S. Collegii. He is chosen by

vote, and should be an Italian. His substitute (clericus na-

tionalis) should be alternately selected from the French,

Spanish, English, and German nations." The Sacred College,

being the chapter of the Roman Church, does not in every re

spect fall under the laws that govern other chapters. Thus, it

cannot meet without the permission of the Pope,73

while other

chapters, in matters relating to themselves as corporations,74

are convokedby

their dean orpresident

even without the

consent of thebishop."

Cardinals living in Rome should

have a yearly income of four thousand dollars (scudi)

84 Decretum 10 Jun., 1630. "Phillips, Kirchenr., vol. vi., p. 282.

MIb., pp. 233, 238.

& 7

Ib., pp. 237, 238.

&

Ib., p. 233.&

Ib.. p. 238 ;cfr. Phillips. Lehrb., p. 3U

*

Craiss., n. 718."

Phillips, Kirchenr., 1. c., p. 252.

"

Ib."

Ib., p. 234.

74

Phillips, Lehrb., pp. 313,314.

** Our Notes, n. 66."

Phillips, Kirchenr., 1. c. p. 237.




4. Consistories.

497. Q. What is the origin, history and meaningof coru

sistories ?

A. i. Formerly, namely, from the tenth to the sixteenth

century, the Roman Pontiffs were wont to gather about

them in regular weekly meetings all the cardinals, and to

discuss and transact with them the entire business of the

Catholic world.77

These meetings were called consistories,

and were held regularly three times a week at the Papal

palace, and under the immediate presidency of the Pope himself. At these consistories, controverted questions on faith,

morals, ecclesiastical discipline were discussed and decided;

criminal anddisciplinary and other contentious causes were

heard andadjudicated

withjudicial formalities, the litigants

and their advocates being present. The Pope himself

always gave the decision, after having taken the advice of

the cardinals.78

Besides these regular consistories, extraor

dinary ones were held on special occasions. Thus PopeClement V. held an extraordinary, public consistory for the

purpose of ratifying the election of the Emperor Henry."

2. Although the ordinary consistories were held threetimes a week, yet it was found impossible to expedite the

constantly increasing business of the Catholic world at

them.80

Hence, in the sixteenth century, the cardinals whohad up to that time discharged the affairs of the Church

only in these general meetings, where they acted as a committee of the whole, were divided up into various special

committees, to each of which a special kind of business or a

particular sphere of action was assigned. These committees

were, and are still, called Congregations of Cardinals. Con

sequently the affairs which had formerly been transacted in

17Analecta, Jur. Pont., A.D. 1857, p. 2236.

78Bangen, the Roman Curia, p. 75.

79Clem., i de Jurej. (ii. 9).

80

Analecta Jur. Pont., 1. c., p. 2239.





2 job On the Assistants or Ministers

ever, all these matters are fully prepared by a special com,

mittee, called congregatio consistorialis, before they are

brought up in the consistory. Ordinary consistories are

now held, not regularly, but only at the pleasure of the Pope,

as occasion demands. Sometimes none is held for months."

What is done at the present day in public or extraor

dinary consistories? i. The imposing of the red hat upon

new cardinals;

2. The issuing of the solemn final decree or

resolution concerning the canonization of a servant of God;

3.The solemn reception of temporal rulers, or of their am

bassadors. These solemn consistories are held at present,

like the ordinary ones, only at the pleasure of the Pope, as

occasion may require."

ART. II.

Of the Congregations of Cardinals Sacrae Congregationes.

|3gf 498. Q. What is meant by the Sacred Congregations

of Cardinals?

A. We have just seen that down to the sixteenth century

the cardinals discharged the affairs of the Church in general

meetings, where they acted as a committee of the whole;

that in the sixteenth century they were divided up into

various committees, to each of which a particular kind of

business was assigned.84

These committees were, and are

still, called Congregations of Cardinals.

Q. How many kinds of Sacred Congregations are there?

A. i. They are divided into (a) permanent committees,

or those which are permanently established, (b) and tem

porary, or those which are specially appointed to attend to

some transient matter only.

2. Both the permanent and temporary Sacred Congre

gations are subdivided into those which expedite affairs per

taining to the Pope (a) as Bishop of the city of Rome; (b) as

temporal ruler of the Papal States; (c)

and as head of the

82Bangen, 1. c., p. 76.

83Ib.

84Analecta, Jur. Pont., A.n. 1857, PP- 2264 sq.




entire Church." r. As Bishop of Rome, he is assisted bythe S. Congr. Visitationis Apostolicae, \vhich attends to all

matters pertaining to the diocese of Rome. 2. As temporal

sovereign of the States of the Church, he is aided by the

Congr. Super Consultatione Negotiorum Status Ecclesiae, which

directs both the internal affairs and the external relations

of the Pontifical States. 3. Finally, as head of the entire

Church, he is assisted by twelve standing congregations,8

of

which we shall now speak.

Q. What is the personnel of the various congregations?

A. Each of the Sacred Congregations is composed of

several cardinals, and as a general rule has a cardinal-

prefect and a secretary, both of whom are appointed

for life. A bishop in partibus? or other prelate, generally

fills the office of secretary. The precise number of

cardinals attached to each congregation depends at pres

ent on the will of the Pope.hB The Congregatio Sancti

Officii alone has no cardinal, but the Pope, as its pre

fect.89

Moreover, all congregations, save the Congr. Concilii,

have their counsellors (consultores), theologians, and canon

ists, who are appointed bv the Holy Father for life.90 The

Congr. Episc. had no consultores down to the year 1834, in

which year some were also attached to this congregation.81

i. The Congregatio Consistorialis.

499. The scope of this congregation is to fully prepare

all matters that are to be discussed and decided in consis

tories.92

This committee was established by Pope Sixtus V.,

has from eight to twelve cardinals, and is usually presided

over by the Pope himself.83

86

Phillips, K. R., vol. vi., p. 675.88

Ib., p. 676.

87

Ib., p. 567."

Ib., p. 565-

&

Ib., p. 566."

Ib., p. 567.

91

Salzano,lib. i.,

p. 77.

wIb.

93Phillips, Lehrb., p. 217, and Kirchenr., vol. vi., p. 580.




2. The Congr. S. Inquisitionis or S. Officii.

500. I. This congregation is charged with the investi

gation and suppression of current heresies. At first this

congregation, as established by Pope Paul III. (1542), was

but a temporary committee; its present form,94

as a standing

congregation, was given it by Sixtus V.95

II. The powers

of the S. Inquisition (sanctum officinni],as determined by

Pope Sixtus V.,96

are chiefly: i."

Inquirendi, citandi, pro-

cedendi, sententiandi et definiendi in omnibus causis, tarn

haeresim manifestam quam schismata, apostasiam a fide, ma-

giam, sortilegia, sacramentorum abusus concernentibus"

; 2,

" non solum in urbe [zV., Roma] et statu temporali S. Sedi

subdito, sed etiam in universo terrarum orbe,super

omnes

patriarchas, archiepiscopos et alios inferiores ac inquisi-

tores.""

III. This committee is made up of a number of

cardinals ; of a commissarius sancti officii who presides at

trials as ordinary judge ;of an assessor sancti officii, who re

ports cases under consideration to the full committee;of

counsellors99

(consuttores), chosen by the Pope himself from

among the most learned canonists and theologians;

of the

promoter fiscalis i.e., the prosecuting attorney ;

10I)

of the ad-

vocatus reorum, or defendants counsel. The General of the

Dominicans, the magister sacri palatii, also a Dominican, and

a theologian of the Order of Conventuals, are its counsel

lors by virtue of their position (consultores nati}. IV. Two

preparatory sittings or congregations are held weekly : one

on Monday, the other on Wednesday.10

The principal con

gregation or meeting of the full committee, where final de

cisions in matters under discussion are announced, takes

place every Thursday in the presence of the Pope, who is


**Const. Immensa.

*"

Walter, p. 263.

101Craiss.. n. 725 726.

85

Walter, pp. 262, 263 ;cfr. Salz. 1. c., p. 791

07

Ap. Craiss., n. 724.98

Salzano, 1. C100

Phillips, Kirchenr, 1. c., pp. 590-592.



of the Sovereign Pontiff. 2/3

the prefect of this congregation.10

V. Formerly there ex

isted also, in the various parts of the Catholic world, local

tribunals or courts of inquisition,103

subject to that of Rome,

as also local inquisitors ;but at present

104these local tri

bunals are everywhere abolished, even in Spain.105 The

S, Officunn, however, of Rome, or the Universal Inquisition,

has not lost in importance, and still has charge of all that

relates more directly to religion or the purity of faith;from

it emanate censures of propositions and the like.10 &

3. Tlie Congr. Indicts The "Imprimatur"in the United

States.

501. The task of examining books and making a list

(index} of those which, upon examination, had been pro

hibited, was at first entrusted to the 5. Congr. Lnquisitionis.

As, however, this committee, owing to its other duties, was

unable to properly attend to this matter, Pope Pius V., in

1571,""established the Congr. Indicts, whose special and

almost sole duty was to examine books that were to be

either proscribed, emended, or permitted.109

Books against

faith and morals are at present examined and condemned

almost exclusively by this congregation.110

It is composed

of several cardinals, one of whom is prefect ;of the magister

sacripalatii, the permanent assistant of the prefect; of coun

sellors and relators.111

502. Rules of the Index (Regulae Indicts]. According to

the ten rules of the Index drawnup by

a committee of

the Fathers of the Council of Trent, and approved and

published by order of Pope Pius IV.112

and later Pon

tiffs,"

3

some books are prohibited absohitely ; others but con-

102

Phillips, 1. c., p. 592.103

Ib., p. 585.IM

Craiss., n. 723.

106

Salzano, 1. c., p. 79. .

109Ib.

107

Craiss., n. 727.

MePhillips, Kirchcnr

,vo<, vi., p. 612.

I09

Ib., Lehrb., p. 219.

110

Our Notes, n. 402.nl

Phillips Kirchenr., 1. c., p. 6rim

Const. Domitiiri A.D. 1564.us

Cfr. Re ff, lib. v., tit. vii., n. 117




ditionally or sub clausiilis. I. These are absolutely forbid

den : i. All books which were already prohibited prior to the

year 1515 by Popes and oecumenical councils."4

2. All the

writings of heresiarchs, and those books of other heretics

which treat exprofcsso of religion."

5

3. Also obscene books.1

and those which treat of astrology,1 "

sortilegy, and the like,

4. Finally, all books placed on the Index, without any obser

vations. II. The following books are prohibited condition-

filly (sub clausulis) i.e., until examined and approved in the

proper manner (donee approbati fucrint] :

" 6

i. Those books

and writings of heretics which do not treat ex professo of re

ligion."

9

2. Bibles published in the vernacular without the

approbation of the Holy See,120

or without annotations taken

from theholy

fathers121

or from learned Catholic writers.1 1

For other rules, see Phillips.1 "

The prohibition of books by

the 5. Congr, Indicis124

includes the reading and keeping, the

defending and publishing, of such works."

III. The law of

the Index128

furthermore enacts that no book or writing of

any kind shall be published without the approbation of the

ordinary of the diocese where the book is published. From

this we infer: I. The approbation is to be given, not by the

ordinary of the autlior, but of the place where the book is

published.1 "

2. The law of the Index is more sweeping in

its restrictions than the Council of Trent.1 & 8

The latter re

quires the approbation of the ordinary only for books treat

ing de rebus sacris ; the former for all books or publica

tions.129

Tins law of the Index, however, so far as its

unlimited application is concerned, seems at present to be

universally in abeyance ; for, even in Catholic countries,

114

Regula I., ap. Reiff.,1. c., n. in. ns

Regula II.""

Regula VII.

117

Regula IX.1W

Phillips, 1. c., pp. 613, 614.&

Regula II.

140

Regula IV.121

Craiss.,

n. 737.ra

Cfr. Cone. PI. Bait II., n. 16.

123L. c.

I24

ReifF, lib. v,tit. vii., n. 3;, 7-

I25

Konings, n. 1702

139

Regula X.m

Craiss., n. 743.I28

Sess. iv.. de Edit. libr.

Bouix, DC Jure Regular., vol. ii., pp. 146, 14?.



of Ike Sovereign Pontiff. 175

where the Rules of the Index are in force, only such books at

most as treat dc rebus sacris are submitted to ordinaries be

fore publication. We say, at most ; for not only through

out the United States, but also in Catholic countries," such

books as treat de rebus sacris are now often published with

out the approbation of ordinaries. Note, it is important to

know the Rules of the Index ; m for the 5. Congr. Indieis ex

amines and passes judgment on books according to these

rules.132

503. Q. Are the Rules of the Index and the decrees of the

5. Congr. Indicis obligatory sub gravi throughout the entire

Church ?

A.

They

are;for various Roman Pontiffs have time and

again declared the law of the Index to be binding on all the

faithful. Thus, Benedict XIV.133

enacts:" Indicem ab om

nibus et singnlis ptrsonis, ubicunqne loconun existentib us, invio-

labiliter et inconcusse observari praecipimus."

There

are some, indeed, who affirm that the Index is not binding,

at least in part, where it has not been received, or where it

has been abrogated by custom to the contrary.

13 &

Reiffen-stuel and Phillips

" 6

answer very properly that just laws,

such as those of the Index, in order to be binding, need not

be accepted ; nay, that subjects commit sin by refusing, with

out a sufficient cause, to accept a just law.1 "

As to cus

toms abrogating the law of the Index, Reiffenstuel13fl

very

justly points to the fact that, so far from being tolerated by

the Roman Pontiffs, these customs have been expressly and

repeatedly condemned by them, and are therefore abuses.

Thus Benedict XIV., after having, as we have seen, de

clared that the Index binds everywhere, expressly adds :


131Cfr. Phillips, 1. c., p. 612.

132

Reiff., 1. c., n. 1)9-110.133

Const. Quae ad Catholicae, arm. 1757.

134

Ap. Phillips, 1. c., p. 6iS, note 34.m

Reiff., lib. v., tit. vii., n. 113.

6

Kirchenr. , vol. vi., p. GiS.I3T

Cfr. Supra, n. 30.138

L. c., n. 117; cfr. n. 90.




" Non obstantibus usibus, stylis et consuetudinibus etiain

immemorabilibus, caeterisque in contrarium facientibus

quibuscunque."In all subsequent editions of the Index

issued by Papal authority down to the year 1841 the brief

of Benedict XIV. containing this clause was retained.13S

Pope Leo XII., in his mandate of March 26, 1825, urges

upon bishopsthe

obligationof

enforcingthe rules of the

Index. Lastly, Pope Gregory XVI., in his encyclical

letters of March 6, 1844, ordains:" Standum esse generali-

bus regu is et d.cretis quae Indici librorum prohibitorura

praeposita habentur."

504. From what has been said it follows that the Rules

of the Index and the decrees of the 5. Congr. Indicis are

per se obligatory everywhere, and therefore also in the

United States.141 We say, perse; for, considering the fact

that not only with us, but even in European countries v.g.,

Germany and France these rules are not, and, owing to the

times in which we live, cannot, perhaps, be observed in all

their rigor, it may perhaps be presumed that the Sovereign

Pontiff does not wish to urge their full observance, and that

consequently the faithful are excused from the more rig

orous observance of each and every Rule ot the Index.1 "

505. The Second Plenary Council of Baltimore thus calls

attention to the general law of the Church :

14ft

"Jamvero

Ecclesiae lege, libri ad religionem et Dei cultum spectantes

sine Ordinarii approbatione praelo committi vetantur ; quod

si, Episcopo inconsulto aut invito, in lucem prodierint,eorum

lectione est abstinendum. Quod omnibus in memoriam

hoc decreto revocavit C. Bait. I. :

14B

Quoniam multa incom-

moda jam orta sunt, et in posterum oritura videntur, ex eo

quod in diversis hujus provinciae (Regionis) dioecesibus di-

""Craiss, n. 731.i40

Prael. S. Sulpit., torn, i., p 175. Parisiis, 1875.

141 As to the faculties of our bishops in this matter, see Facult, form i.,

n. 21;Fao. Extr. f\, n. 2.

""

Prael. S. Sulpitii,1. c., p. 174.

148Cfr Konings. n. 1707, q. 2.

149Prov. i., n. 33.




versi catechismi et libriprccum adhibeantur, privata auctori-

tate editi, . . moneant (Episcopi) fideles tit a precum

libellis, qui sine Ordinarii approbation . . in lucena

editi circuraferuntur, abstineant."1&0

Again it enacts :

"

Ut"

(Episcopi,in quorum dioecesibus sint praela aut typogra-

phea Catholica) "in suis quisque dioecesibus unum aut

plures sacerdotes151

. . .

designent, qui examini subji-

ciant libros precum, aut aliter ad rdigiunem pertinentes, prius-

quam ab Ordinario . . . approbatione fidelibus com-

mendentur."1M As to the censures incurred for violating

the Rules of the Index, see Craisson153

and the Constitution

Apostolicae Sedis of i869.154

4.T/n

CongregatioConcilli.

506. I. The Council of Trent left to the Sovereign Pon

tiff the care of enforcing and interpreting its enactmentsI5i

wherever anything should be met with requiring explana

tion or definition.156

For this purpose Pope Pius IV. (1564)

established the Congr. Cardinalium Concilii Tridentini Inter

prettun II. This committee had, in the beginning, only

power to see to the execution or observance of the Triden-

tine disciplinary laws i.e., decrees on reform.1 "

It was

empowered by Pope Pius V. to interpret definitively the

Council of Trent in all cases where the congregation was

not in doubt as to the meaning of the Council.159

Finally,

Sixtus V. gave this committee general powers to interpret

the Tridentine decrees on reformation. Now, the decrees

of Trent include, so to say, the entire code of ecclesiastical

jurisprudence. Hence, this congregation has power to ex

plain authoritatively all canon law; moreover, in matters of

discipline, it has not only judicial but legislative authority

150C. PI. Bait. II., n. 502.

I51C. PI. Bait. I., n. 8.

152C. PI. Bait. II., n. 503.

"

N. 760.

104N. 2

; Craiss., n. 1641.156

Sal/.ano, lib. i., p. 85.

16rC. Trid.,se-s. xxv., c. xxi., d. R.

167


"* Cfr. ib , p. 220.159

Cfr. i

1

... Kirchenr., 1. c.,pp. 625-636,




over the entire Church,

160

being empowered to make suchlaws as are deemed

opportune."

1 We said above, Tridentine

decrees on reformation ; for the interpretation of the Triden

tine decrees in matters of faith is reserved to the Pope.16

III. Personnel of t/tis Congregation. It has a greater number

of cardinals than the other congregations. A prelate, gene

rally an archbishop in partibus, is itssecretary."

3

This com

mittee has these three sub-committees: i. The Congr. Visita-

tionis liminum, which receives the reports on the state of dio

ceses, both as sent to Rome or as made personally by bishops

when visiting Rome."4

2. The Congr. particulars super re-

visione synodoruin proinnciaiiurn. A number of consultors arc

attached to this special committee; though, as we have said,

no consultors are attached to the S. C. Concilii itself. Both

these sub-committees are presided over by the cardinal-

prefect of the full committee (Congr. Concilii), and have the

secretary also of the latter.165

3. TJic Congr. particularis super

residcntia Episcoponnn.

5. The Congrcgatio de Propaganda Fide, its re/ations to t/u

United States.

507. This congregation was established by Gregory

XV. 16

and consists of a number of cardinals, one of whom

acts as prelect; ol a secretary, who is always one of the

most esteemed prelates: of the assessor sancfiofficii ; of

twenty -four counsellors and many subaltern officials.11

This congregation has entire and exclusive charge of the

ecclesiastical affairs of missionary countries. New missions

are established and districted by it. As a rule,168

a mission

is first entrusted to a simple priest, as praefectns apostolicns.

When the mission is farther advanced, a vicarius apostolicus

is appointed ; he is made bishop or archbishop in partibus

100

Phillips, 1. c., pp. 634, 635."

Craiss., n. 76916V

Ib., n. 760.>"

Analecta, J. P., A.D. 1857, p. 2387.1C4

Ib., p. 638.

1Bt Ib."

* Const. Inscrutabili, 22 Jan., 1622.

187

Phillips, vol. vi., p 668""

It>., pp. 669. 670 ;cfr. Craiss., n.

?8<x



of the Sovereign Pontiff, 2 79

Sometimes a fixed place of residence is assigned him; yet a

diocesan organization, canonicallv complete, is not thereby

effected. Hence, such a bishop remains an auxiliary bishop

of the Pope. For that reason, also, missionary bishops are

not appointed in consistory, but on the nomination of the

Propaganda.16 With us, the consultors and irremovable

rectors on the one hand, and the bishops of the province onthe other, recommend to the Propaganda three candidates

when a bishopric becomes vacant.170

Countries are con

sidered missionary and remain under the Propagandam

so

long as the organization of their dioceses is incomplete"

/>.,not in every respect conformable to canon law v.g., if

chapters do not exist;1 1

in other words, until canon law

fully obtains in them.

508. Powers of the Propaganda. Dioceses may be incom

plete as to their organization chiefly in two ways: i, some

dioceses are as yet in the course of organization "*v.g.,dio

ceses in the United States; 2, others which, though once

fully organized, became disintegrated by the inroads of

schism or heresy in countries once Catholic. Wherever the

organization or form of government of a diocese is not and

cannot be made entirely conformable to canon law,175

its ad

ministration devolves directly on the Pope, who has juris-

dictio ordmaria in every diocese.J7li

Now, the Sovereign

Pontiff" manages the affairs of missionary countries through

the Congr. Prop. Fidei. Hence, this committee has exclu

sively the direction of ecclesiastical affairs respecting mis

sionary countries. We say, exclusively ; that is, the Propa

ganda is for missionary countries what all the other congre

gations combined are for countries where dioceses are

perfectly organized, having chapters, etc. While, there

fore, ecclesiastical matters from canonically-organized die-

""

Phillips, vol. vi., p. 670."

Cone. PI. Bait. II., n. 106.

Phillips, Lehrb., p. 223. m Cfr. ib., 126, p. 235.

173Cfr. Phillips, Kirchenr., 1. c., p. 663.

174

Ib., Lehrb., p. 235.

&

Ib. . cfr. ib., p. 223.17

Cfr. ib.. Kirchenr., 1. c, p. 665



>8o On the Assistants or Ministers

ceses must be referred to the respective congregations

having charge of the specific affair, those from missionary

countries must be referred exclusively to, and are arranged

solely by, the Propaganda. Hence, of this congregation it is

said: Cacteras tongregation.es Jiabet in venire"1

i.e., for mis

sionary countries the Propaganda is the sole congregation,

combines in itself the powers and discharges the duties or

functions not merely of several, but of all the other congre

gations ;so that while the priests and bishops of countries

where canon law obtains must refer matters to the respec

tive congregations, the priests and bishops of missionary

countries must, in all cases, address themselves to the Propa

ganda, but to no other congregation. Thus, this committee

is for missionaries the exclusive court of appeal in all cases

of dispute ;it alone solves questions proposed to the Holy

See by missionaries. Observation. From what has been

said we infer: All priests or bishops in the United States

having recourse to Rome, whether for the sake of appeal

ing v.g., from alleged acts of injustice on the part of

bishops or by way of asking for faculties or decisions in

controverted matters in a word, in all cases must address

themselves to the Propaganda, and to no other congregation (H, p. 503).

509. In the seminary attached to thePropaganda""

young men of every nationality are educated for the va

rious missions of the world. In the printing-office attached

to the Propaganda books are published in every languagefor the use of missions.

The full committee (Congr. genera-

Us) meets once a month,179

on a Monday. The meeting is

generally held in the Propaganda ;sometimes in the pre

sence of the Pope. The sub-committee, composed of the

cardinal-prefect, secretary, and several subaltern officials,

17T

Phillips, 1. c., p. 663.78This seminary is named Collegium Urbanum, after Pope Urban VIII., whc

established it. Craiss., n. 781."

Phillips, 1. c., vol. vi., p 666.




meets once a week in the house of the cardinal- prefect ; it

attends to matters of minor importance, reserving those of a

graver character to the full committee.1

Pius IX.181

divided

the Propaganda into two parts : one, pro ntu latino ; the

other, pro ritii orientali.

l* ~

6. Tlie OtherCongregations.

510. I. The Congr. super Negotiis Episcoporiun et Regula-

rium. I. Though originally two distinct congregations,18 &

the Congr. Episcoporum and the Congr. Rcgularium were soon

united into one, probablylfl4

already by Sixtus V.186

II.

Powers of t/iis Congregation. It has charge of all matters

whatever relating to bishops (omnia negotia episcoponun)

or religious communities (negotia rcgulariuni) ;it settles

disputes between bishops and their subjects, as also be

tween bishops and religious communities.18 &

It has, in

fact, jurisdiction in all matters, save those which relate to

dogmas or require the interpretation of the Council of

Trent;

87

hence it is termed congrcâtio universalis. Its per

sonnel is similar to that of other congregations. III. Mode

ofprocedure. In deciding cases referred to it1 & 8

this commit

tee proceeds either judicially, though summarily, or extra-

judicially, according as the matter is of a contentious or vol

untary character.1M When a question of dispute v.g., between

a bishop and a parish priest is brought before this commit tee,

its usual course is to write to the bishop against whom the com

plaint is

lodged,or, if he fails to furnish a satisfactory

report,

to

the metropolitan, to a neighboring bishop, or also to other

trustworthy persons, for a statement of the case. Upon re

ceipt of such statement the committee proceeds to discuss

100

Phillips, vol. vi., p. 668.""

In iSt:2, Jan. 6.

lwi

Craiss., n. 782."*

Ib., n. 770.

1MPhillips, vol. vi., p. 642.

1BSConst Immensa Aeterni, A.D. 1587.

**

Phillips, 1. c., pp. 645, 646.

""

Ib. , pp. 640, 643.

"**

Ib., p. 644.189

Salzano, lib. i., p. 86; Santi, Prael. 1. i, t. 31, n. 59, 86.




and settle the case.ls

The decision reached is communicated to the bishop,

191

either directly or through some neigh

boring prelate. In matters relating to religious communi

ties the procurator-general of the respective religious order

is applied to for information as to the case.

511. II. Tlie Congr. Sacrorniii Rituuin. This committee,

which was established by Sixtus V.,1 "

is empowered: i. To

prevent anything superstitious from getting into the cere

monies or liturgy of the Church. 2. To bring about uni

formity of worship by enforcing the ordinance of Pius V.

to wit: That the ceremonial of the Roman Church,&

especially as regards the Masr, the office, and the ad

ministration of the sacraments, should be observed by all

the other churches of Christendom. 3. Hence, to correct

the missal, breviary, pontifical, ritual,191

and ceremonial. 4.

To conduct the proceedings respecting the canonization ol

saints.101

512. Q. What is the force of the decrees and decisions of

the Congr. S. Rituum ?

A. There are two kinds of decrees : some, and by far the

greater number,are

particular, beingin the form of

answersto individuals or particular churches

;others are general,

either expressly v-g; when addressed nrbi et orbi or

aequivalenter v.g., when explanatory of general rubrics :e.g.,

those in the beginning of the Missal or Breviary.11 "

Now,

all decrees which are expressly general are obligatory every

where; decrees which are general aequivalenter also bind uni

versally, provided they are dcclarationes comprehensivae.* Asto particular decrees, it is certain that they have the force

JBO

Sahano, lib. i., p. 86.m

Phillips, 1. c., pp. 646, 647.

IWBulla hnmensa Aftetni ; cfr. Bened. XIV., De Sen oruin Dei flfa if, etc.

cap. xvi.-xix.lfl3

Salzano, 1. c., p. 87.

""

Phillips, 1. c., p. 654.106

Ib.

mTraiss., n. 775 ;

cfr. supra, n. 77, 78, 81.1P7 O Kanc Notes, n. 29.

Jl* Cfr. supra, n. 70




of law for those for whom they were given ;but are they

also binding on all i.e., are they obligatory also in casibus

limilibus ? Here a distinction must be made between those

particular decrees which, though particular in form, are

nevertheless1 & 9

general and applicable everywhere, in sub

stance and intent, and those which are particular,in an ex

clusive manner i.e., not only in form, but also in intent:

v.g., those that imply a dispensation or privilege, or are

given on account of special local circumstances. Now, it is

certain that the latter are binding20

only in the particular

cases for which they are made;whether the former are

universally binding is a disputed question. St. Liguori2C

seems inclined to the opinion that they are not;but he

afterwards modifies this opinion by adding that, when such

decrees are universally known, and are thus, in tact, pro

mulgated by long usage and the constant, reference of

authors to them, they are binding on all.203

Note, how

ever, it is certain that, when particular decrees are solemnly

promulgated to the entire Church, they become binding

on all.

5 3.HI. The Congr. Indulgentiarum et Reliquiarum was

made a standing congregation by Clement IX.203

Its duty

consists, i, in preventing abuses in the matter of indul

gences, etc.; 2, in authenticating relics, especially those

taken from the Catacombs of Rome.204

For the remaining

congregations, see Craisson.205

514.

The Congregations in general. In conclusion, we add

a few words on the rights, etc., common to all the congre

gations. I. All congregations have jurtsdictio ordinarin in

their respective spheres ?>.,in matters entrusted to their

199Cfr. O Kane, 1. c., n. 29.

20CCfr. Konings, n. 173, quaer. 4.

201Lib. i., n. 106, quaer. 2.

2oa O Kane. 1. c., n. 35.

203 Const. In Ipsis, 1669 (B. M., torn, vi., p. 283).

204


M6

L. c.,n.

783 seq.

"Phillips, 1. c., p. 569-




cognizance bytheir mandates or

commissions; nay, theyconstitute one and the same tribunal with the Sovereign

Pontiff; hence, there is no appeal from them to the Pope.

4 "

They resemble, in their powers, the vicar-general of a

diocese. They are in fact the vicars-general of His Holiness

for the entire Church, just as the Cardinal Vicar of Rome

is the Pope s vicar-general for the diocese of Rome. Their

jurisdiction does not lapse with the death of the Pope; yet

it should, so to say, lie dormant during the vacancy of the

Papal chair.08

For the; cardinals should, during such

vacancy, apply themselves chiefly and almost exclusively

and without any delay to the election of a new Pope.

Hence they should not do anything else, although they can

provide for urgent cases brooking no delay. Consequently

they have not the powers of a cathedral chapter or of a

diocesan administrator, sede vacante

Thus Pope Innocent III. (1243-1254) decrees:"

lidem

quoque cardinales accelerandae provision (election S.

Pontificis) sic vacent attentius, quod se nequaquam de alio

negotio intromittant, nisi forsan necessitas adeo urgens in-

cideret, quod eos oporteret de terra ipsius ecclesiae defen-

denda vel ejus parte aliqua providere, vel nisi aliquod tarn

grande et tarn evidens periculum immineret, quod omnibus

et singulis cardinalibus praesentibus concorditer videretur

illi celeriter occurrendum."

Pope Clement V. (1305-1314) confirms the above and

annuls all acts of the cardinals done to the contrary. His

words are:

"

Irritum et inanedecernentes, quidquid potes-

tatis aut jurisdictionis ad Romanum, dum vivit, Pontificem

pertinentis (nisi quatenus in constitutione praedicta i.e. cap.

i de elect, in 6, permittitur), coetus ipse (Cardinalium)

-cluxerit, eadem vacante ecclesia (Romana) exercendum."*11

""

Craiss., n. 785.* 8

Phillips, K. R., vol. vi., p. 570.

5119Schulte, K. R.

(vol. i., p. 102.

2I

Cap. T de elect, in 6 (i. 6).

*"

Clern. cap. 2, de Elect, (i. 3).




II. Forms used by the various Sacred Congregations in de

ciding matters. The Sacred Congregations, being the su

preme tribunals of the Church, do not, in giving a decision,

set forth the reasons upon which it is based. They render

their decisions sometimes in one word, such as affirmative,

and sometimes in short phrases. We shall nowbriefly ex

plain these words and clauses.

Some of the resolutions of the Sacred Congregations are

such as put off the decision for further examination;others

are such as contain the decision rendered. The former are

given in the following forms : i. Non proposita ; that is, the

matter could not be decided in the session, owing to the fact

that the session was finished before it was reached. Such

deferred matters are usually the ones first taken up in the

next session. 2. Iterum proponatur ; that is, the matter or

case was indeed discussed in the meeting of the Sacred

Congregation, but, the opinions of the cardinals being di

vided and the matter not being altogether clear, no de

cision was arrived at, and the matter is therefore to be

brought up again at the next session.3. Dilata, which

means that the matter was indeed discussed, but that a sub

stantial act or proof is missing or wanting, and that the case

is therefore put off to a future session. Sometimes the de

cision is dilata et coadjuventur probationes.

The resolutions which contain a decisive answer are usu

ally given in these forms : i. Affirmative or negative ; that is,

the case is decidedaffirmatively

or

negatively

and unfavor

ably. 2. Sometimes to these words is added the clause et am-

plius, which means that the case or matter has beenfully and

completely discussed and decided unanimously, and there

fore will not be reconsidered by the Sacred Congregation,

nor the favor of a new hearing granted, except by special con

cession of the Holy Father or of the Sacred Congregation.

Here we observe that when the decision is simply affirmative or negative a new \\e?*.v\v\g(beneficium novae

audientiae] be-




fore the same Congregation which gave the decision is

granted, as a matter of course, upon the application of the

losing party, made within ten days after the decision was

rendered.21

3. Non expedire, which is a mild way of refusing

a request. 4. Lectum or relatnm ; that is, the request was

read in the meeting, but was not admitted. 5. Reponatur ;

that is, no answer is given, but yet the papers or the re

quests are to be placed in the archives of the Sacred Con

gregation. 6. In decretis or in decisis, which means that a

previous decision rendered in a case by the Sacred Congre

gation, against which a new hearing or reopening of the

case has been granted, is reaffirmed. When, in the new

hearing, the Sacred Congregation reverses its first decision,

it does so in these words: recedendum a decisis, etc. 7. Some

times to the decision are added the words ad mentem,

which signify that the Sacred Congregation modifies the

decision in accordance with the principles of equity. At

times this mens is explained with the decision in the words

mens est, etc. At other times the mens is not thus explained

and published by the Sacred Congregation, but is merely

sent to the ordinary whois

charged with carryingout the

decision.

III. General manner in which the Sacred Congregations dis

pose of ecclesiastical affairs. Before all else, it should be

borne in mind that the Sacred Congregations are tribunals

of the Holy See for the external government of the Church,

and consequently only for matters which pertain to the ex

ternal forum. Hence when applications are made to themthe real names and surnames of the parties are always to

be stated. All matters which belong to the forum internum

should be brought before the Sacred Penitentiary ;here the

fictitious, not the real, names of the parties for whom some

thing is asked are given.

Next we must distinguish between extrajudicial or non-

contentious i\\-\<\ judicial or contentious affairs With regard

*"

S. C. EK. et RR.. 1835. art. 14; 1834, art. 13 ; Bangen, 1. c., p.175-




to extrajudicial matters, or those about which there is no

contention between parties, they are either of considerable

importance or not. The less important non - contentious

matters v.g., indults which do not affect the rights of third

parties may be and are usually expedited by the cardinal

prefect and secretary, or by the secretary alone, of the

respective Congregation. But all non-contentious mattersof importance, v.g., the approval of the rules of a new re

ligious community, belong to the full Congregation, and

cannot, therefore, be transacted by the prefect or secretary.

So far as concerns judicial or contentious matters, v.g.,

an appeal from the decision of a bishop, they cannot be ter

minated by the cardinal prefect and the secretary, but

must be brought before the full Congregation, and adjudi

cated in a judicial though summary manner, in a plenary

meeting of the respective Sacred Congregation, held gen

erally once every month. We sa.\, judicial manner ; that is,

the parties agree upon the dnbia which form the litis contes-

tatio ; present their arguments in writing, etc.

As a rule, in the full monthly meetings of the various

Sacred Congregations, the secretary of the respective Con

gregation reports on the cases or matters to be decided;

that is, he presents to the assembled cardinals an impartial

summary statement of each case (restrictus facti et juris],

together with the arguments pro and contra ; reads extracts

from the documents submitted by the parties, etc. We say,

as a rule ; for in some of the Sacred Congregations, v.g.,in

that of bishops and regulars, a cardinal is always ap

pointed in contentious non-criminal causes, ut videat et refe-

rat ; that is, to prepare the case beforehand, and to report

on it in the full monthly meeting of the Sacred Congre

gation,"

3

In regard to applications addressed to any of the Congre

gations,the rule is that letters should not be sent

directlybv mail, but must be presented in the office of the secretary

*nBangen. Rom. Curia, pp. 173, igO ; Phillips. K. R.. vol. v-i.. p. 573.






Its origin dates back to the earliest ages of the Church.

From the earliest days, Popes referred causes brought

before them to referees or auditors for examination and

report. These auditors gradually formed a college or as

sociation, and began to decide cases as a collective judicial

body, called the Rota. The latter existed already prior to

1326, as a college of judges, with full Papal authority.2

"

Its jurisdiction as regards the universal Church is at

present greatly restricted, being confined to those matters

which are specially committed to it by the Pope.316

This

restriction of its powers is due mainly to the establishment

of the Sacred Congregations, which now decide nearly all

those contentious matters which were formerly adjudicated

by the Rota.

518. II. The Apostohc Treasury Department (Rev. Camera

Apostolica), which might be compared to the treasury and

interior departments of the United States, dates back to the

eleventh century (1044), and has charge of the Papal finan

ces, and exercises contentious jurisdiction in financial mat

ters.21

Formerlyit

possessed jurisdictioneven in criminal

matters ovef the entire Church. Its jurisdiction in the latter

respect has now passed to the Sacred Congregations. The

Camera Apostolica is composed (a) of a cardinal, as its head

who is, on that account, called Camerarius Camerlengo di

Suncta Romana Chiesa or chamberlain and treasurer of the

Holy See ; (b) of a substitute, or assistant treasurer ; (c)of an

auditor (Auditor C. Apostohcae];

(d] of a number of prelates.

The powers of the cardinal chamberlain do not expire

with the death of the Roman Pontiff, but, on the contrary,

become very extensive during the vacancy of the Holy See.

For as soon as the Pope dies, he at once takes possession of

815Bangen, 1. c

, p. 297.

* *

Phillips, Lehrb., p. 224 ; Craiss., Man., n. 798.

" 1

Bangen, 1. c., pp. 346. 347.



2go On the Assistants or Ministers

the Papal palace, and obtains complete charge of the Papal

household. He conducts all the arrangements for the

funeral of the deceased Pontiff. Moreover, he has full

charge of the conclave for the election of the new Pope.218

In a word, during the vacancy he represents the Holy See,

and together with three other cardinals, namely, the oldest

cardinal bishop, the oldest cardinal priest, and the oldest

cardinal deacon, stands at the head of the government of

the entire Church. When he appears in public, he is accom

panied by the Papal Swiss Guards.219

519. III. The Signatura Papalis Justitiae, so termed because

of the Papal signature (signature?) affixed to its acts or deci-

.sions, elates back to the earliest ages of the Church. Its

referees (Consiliarii, referendarit] are mentioned already in

590. In 1484, the signature/,,which down to that time had

decided both contentious and non-contentious matters, was

divided by Pope Innocent VIII. into two distinct branches,

one for contentious, the other for non-contentious, affairs.220

The former was called signaturaJustitiae, the latter signatura

gratiae. Formerly the signatura justitiae was possessed, by

virtue of its general commission,of

jurisdictionin all matters

which were of a contentious character, and which were

brought before the Holy See from the various parts of the

entire Church. But at present, owing to the establishment

of the Sacred Congregations of Cardinals, which exercise full

jurisdictionin contentious matters, the signatura justitiae has

almost entirely ceased to exercise the jurisdiction formerly

vested in it. It consists of a cardinal, as prefect ; of thirty or

more prelates,as referees, of whom, however, only twelve

have a vote, and are therefore called praelati votantes

8)8 Clem. XII., Const. Ad Perpetttam, 1732; Bangen, Rom. Curia, pp-349. 353-

Phillips, K. R., vol. v., p. 728; vol. vi., pp. 407, 416.

250Bangen, 1. c., p. 374.

"





2. Tribunals of Grace.

520. Q. Which are the Papal tribunals of grace or

favors ?

A. The following: I. The Datary (Dataria], which is so

called from the fact that Papal concessions or favors suchas appointments to parishes were carefully dated, and the

date registered by an official of the Pontifical court, in order

to prevent litigation among the parties. Its origin dates back

to the thirteenthcentury."

It is the organ or department

through which the Pope grants dispensations from public

impediments of marriage, and therefore pro foro externo, and

also makes appointments to parishes reserved to the Holy

See, or grants pensions, etc. A cardinal is generally at the

head of this tribunal;he is named Pro-datamus, because the

datary is not properly a cardinal s office.2 " He has under

him an assistant pro-datarius, and a number of other minor

officials such as secretaries, copyists, etc. All the letters

and documents containing the favors accorded by the da

tary are made out and expedited either by the apostolic

chancery or through the office of the secretary of apostolic

briefs, according as they are to be made out in the form of

a bull or of a brief. The datary does not itself directly

send or expedite the dispensations or favors granted by

it.334

521.II. The Sacred

Penitentiary (Sacra Poenitenttaria\which dates back to the seventh century, is the organ qr

tribunal which grants, in the name of the Pope, spiritual

favors, such as absolutions, dispensations, as a rule, only

.pro foro internal and also directly expedites the favors

granted by it. We say favors ; in other words, this tribunal

^"2

Bangen, 1. c., p. 398.

s<:

Stremler, Des Peines Eccl. , p. 620.

*-Ib., p. 621.

*"

Baiigen, 1. c., p. 419, 420.




has power to dispense in occult irregularities ;to render

marriages valid which are invalid because of an occult im

pediment ;to absolve from censures reserved to the Pope

or to the bishop, etc. We say also, only pro foro interno

This is the general rule ;for in certain cases, specified in

law, the Sacred Penitentiary can grant favors also pro foro

externo. Thus it can grant dispensations from impediments

of marriage in favor of poor persons who cannot pay the

fees required by thedatary."

7

This tribunal is presided over by a cardinal, called

Poenitentiarius major, who has extensive Papal powers, and

whose jurisdiction as to the forum internum does not lapse

with the death of thePope.""

He is assisted by a theo

logian, a canonist, and other officials,whose

dutyit is to

receive, examine, etc., and expedite the requests addressed

to this tribunal. To him are also subject the poenitentiarii

minores, or the confessors selected from the various relig

ious orders to hear confessions at the three patriarchal

churches in Rome, namely, St. Peter s, St. John Lateran,

and St. Mary Major.229

Petitions for dispensations, absolutions, etc., pro foro in-

terno, should be addressed to this tribunal. Both the peni

tent and the confessor may apply directly and by mail to

the major penitentiary.Letters may be written in the

vernacular.28 &

522. III. The Signatura Grattaethe signature for favors

is the board or bureau of the Pope for non-contentious

matters, that is, for favors and privileges other than those

which are granted by him through the datary or the

Sacred Penitentiary. It consists of a board of auditors or

referees, to whom formerly petitions for favors addressed

126 Bened. XIV., Const. Pastor Bonn*.*"

Stremler, 1. c., p. 616.

Ib., p. 617.2; *

* i>0

Craiss., Man., n. 795.




to the Pope were referred for examination andreport."

1

We say formerly ; for at present, owing to the fact that the

various sacred commissions of cardinals attend to nearly all

such matters, this tribunal has lost the greater part ot its

former powers.

3.Tribunals of the Roman Curia for the Expedition of Papal

Letters or Documents.

523. As their name indicates, these bureaus or boards

have charge mainly of the official epistolary correspondence

of the Roman Pontiff or of the tribunals through which the

Pope grants favors or renders decisions. We say mainly ;

for besides being, so to say, the medium of communication,

they are also empowered to grant certain favors and render

certain decisions. Hence their duties are not restricted to

making out and sending letters containing favors or decis

ions given by other Roman tribunals, v.g., by the datary, the

Rota, or by the Sacred Congregations. It is to be noted

also that at present the Sacred Congregations very often

communicate their decrees, decisions, and answers direct

lyto the parties,

and not through any of the expediting

tribunals.

Q. Which are the Roman Pontifical expediting tribunals

or bureaus ?

A. These: I. The Apostolic Chancery (Cancellaria Apostolica).

This is the oldest expediting tribunal of the Holy See,

some authors dating its origin back to St. Peter himself. It

expedites at present only those Pontifical letters which are

made out in the form of bulls. The following are the chief

affairs expedited in the form of bulls : (a) All matters dis

cussed and arranged in the Papal consistories, of which the

chancery is, so to say, the secretariate. The affairs ar-

*"

Eiangen, 1. c., p 391 sq.



^.y^.On the Assistants or Ministers

rangedin the consistories are

chieflythe

appointmentsof

archbishops, bishops, abbots, and certain other dignitaries ;

the conferring of the pallium ;the erection, union, division,

and extinction of bishoprics. (U) All Pontifical constitutions,

decrees, laws, and other acts which require the solemnities

of bulls,(c) Finally, favors, etc., granted by the apostolic

datary when they require the form of bulls.233

This tribunal is always presided over by the cardinal of

the church of Saw Lorenzo in Damaso, which is enclosed in

the palace itself of the chancery, where also this cardinal

has his residence. He is assisted by a director of chancery

(regens cancellariae], by secretaries or copyists, etc., and by a

board of prelates, which is called Collegia de Prelatt A bbrevi-

atori deV Parco Maggiore, and which constitutes, a sort of

tribunal where doubts and difficulties that may arise rel

ative to the formulas and clauses of decrees and bulls are

discussed and decided.233

The cardinal-chancellor is called vice-chancellor, proba

bly because the chancellorship was not formerly a cardinal s

office. His jurisdiction lapses with the death of the Pope v

when also the seal of the apostolic chancery is broken in

the presence of the cardinals.234 The tribunal proceeds

strictly in accordance with the seventy Regulae Cancel-

lariae"" Bulls are generally signed by the cardinal vice-

chancellor and by the chancery regent. Only consistorial

bulls of great importance are signed by the Pope himself.

II. The Secretariate of Briefs {Secretaria Breviuiri] is the

bureau ordepartment through

which the

HolyFather de

spatches Papal letters or documents which are made out in

the form of briefs. This tribunal dates back to the middle

ages. Briefs, which we have already described (supra, n. 47,

48), are so named in contradistinction to bulls. The latter

832Stremler, 1. c., p. 623.

83Ib., p. 622.

834


336





are Papal letters drawn up with great length and with manyformalities and technical clauses. Briefs, on the contrary,

contain in an abbreviated form (in brc-ci forma], and without,

many technical phrases, what bulls state at greater length

and with more formality.536

Briefs are signed, not by the

Pope, but by the cardinal secretary of briefs and by his

assistant secretary. They are stamped with the red seal of

the Fisherman s ring. This ring, or rather its seal, repre

sents St. Peter sitting in a bark and holding in his hand a

fishing rod or net.237

They are dated thus: "Given at

Rome, in St. Peter s, under the Fisherman sring,"

etc.

The secretariate of briefs expedites by Papal briefs per

mission to alienate ecclesiastical property, dispensations

from want ofage

when there is

questionof

promotionto

sacred orders, indults to have a private oratory with the

Blessed Sacrament, etc. Through this office are also de

spatched the greater number of favors, etc., accorded by the

apostolic datary. For, as we have seen, the datary merely

receives, examines, and grants the requests of parties, and

then remits the matter, for the issuing of the rescript to the

parties, to the apostolic chancery or to the secretariate of

apostolic briefs. The more important papers are issued

from the chancery in the form of bulls;the less important

ones, from the secretariate of briefs in the form of briefs.""

This secretariate sometimes also issues in the form of

briefs letters containing favors, decisions, decrees, etc.,

which emanate from the Sacred Congregations. We say

sometimes; for, in most cases, the Sacred Congregations

now themselves expedite directly their resolutions, decrees,

indults.

This secretariate is presided over by a cardinal who is

termed Pontifical Secretary of Briefs (Secrctarius Breviuui).

MSBangen, 1. c., p. 427.

*31Stremler, 1. c., p. 624.

838 Ib., p. 624.




He is assisted by a prelate, who is assistant secretary ; by an

assessor, by several subsecretaries, and by a bookkeeper.

The rule is that the cardinal secretary of briefs cannot

grant favors, but merely expedites those granted by the

Sacred Congregations, etc. We say, the rule is ; for he has

power to accord certain favors even without asking the

Pope/39

III. The Secretariate of State (Segreteriadi

Stalo), whichis

located in the Vatican palace itself, is the ministry of exte

rior of the states of the Church. It is also the tribunal or

department through which the Pope treats of ecclesiastical

affairs with the civil powers.210 At its head stands a cardinal,

who is called secretary of state. Under him are a prelate,

as assistant secretary ;several subsecretaries, called minu-

tanti ; and other officials.

IV. The Secretariate of Memorials (Secretaria Memoria-

lium], which has its offices in the palace of the apostolic

chancery, is the bureau of the Pope which receives, exam

ines, and answers all requests for favors, etc., addressed to

the Pope more directly as a temporal sovereign. It is pre

sided over by a cardinal as secretary. He is assisted by a.

prelate, as assistant secretary ; by several minutanti, etc.

SECTION II.

Ministers of the Sovereign Pontiff" Extra Curiam"

Legates, nuncios, delegates, vicars, and prefects apostolic

are, as we have seen,341pontifical ministers or assistants extra

curiam Romanam, or outside of the Papal court.

Stremler, 1. c., p. 625.24


341Supra, n. 486.



ojthe Sovereign Pontiff. 297

ART. I.

Apostolic Legates, Nuncios, and Delegates.

Apostolic legates, nuncios, and delegates (legati, nuntii,

delegati apostolici], speaking

in general, are persons appointed

or sent by the Holy See to the different countries or parts

of Christendom for the purpose of representing and acting

for the Supreme Pontiff either in the exercise of Papal juris

diction or in a non-jurisdictional capacity."

We say, either in the exercise, etc. For there are, also at

the present day, two kinds of apostolic envoys: i. Those

who have no real ecclesiastical jurisdictionin

the countryto which they are sent. Such are, for instance, those who

are sent by the Pope to represent him, at the courts of

princes,in a purely diplomatic capacity, or to present the

Pontiff s congratulations to rulers, or to represent him at

some great state or church ceremony, or to bring the car-

dinalitial beretta to a new cardinal living outside of Rome.

These are called delegati legati non judices or ablegati.

2. Those who are clothed with Papal power or jurisdic

tion, more or less extended, to be exercised by them in the

country or district, called their province, to which they are

sent. These ambassadors, therefore, are the representatives

of the Roman Pontiff in the exercise of the supreme, ordi

nary, and immediate jurisdiction vested in him over the

whole Christian world. Of these only shall we speak in the

present article. For it is evidently unnecessary to dwell

further on Papal envoys who are sent without any juris

diction.

We shall therefore inquire with regard to Papal envoys

who are vested with Pontifical jurisdiction : (a) what right

544 Schmalzg ,1. i., t 30, n. r.




thePope

has to send them to different countries;

(b)what

has been the practice of the Holy See, at various times, in

regard to sending them; (c)how many kinds there are;

(d] what are their functions and powers.

i . Right of the Holy See to Send Envoys.

The Vatican Council has dogmatically defined that the

Roman Pontiff possesses supreme jurisdiction over the entire

Church, that is, over the laity, clergy, and episcopate all

over the world;

that this power is truly episcopal, ordi

nary, and direct or immediate;that consequently the Pope

can at all times and on all occasions intervene, with his

authority, in all the ecclesiastical affairs of each particular

diocese of the whole world, and thatin

the event Of suchintervention the laity, clergy, and episcopate are bound to

obey the Pontiff.243

As a consequence of this teaching the Vatican Council

declares that the Roman Pontiff can communicate directly

and immediately with all the faithful and clergy of each and

every diocese and part of Christendom, and that it is unlaw

ful for any one to hinder this free, direct, and immediate

communication. It follows, moreover, from this supreme

jurisdiction, that in the government of their dioceses bishops

are at all times bound to conform fully and strictly to the

rules and prescriptions of the Sovereign Pontiff, and that

they cannot act contrary to them.244

If, therefore, the Pontiff has full and supreme power over

the entire Church, and if he can exercise this power in a

direct and immediate manner and not merely upon appeal to

him or in extraordinary cases, it is also plain that he has

the right to send his envoys and representatives wherever

743 Cone. Vat., sess. iv., cap. iii.

244 Letter of Card. Jacobin , Pontifical Secretary of State, to the nuncio at

Madrid, Apr. 15, 1885,in the Moniteur de

Rome, May 3, 1885.




he pieases, and to confide to them the exercise of his own

poiver in the measure which seems to him proper.246

Hence

to deny the right of the Pontiff to send legates, delegates,

or nuncios to any part of the world, with power to act in his

own name and to exercise his own supreme, ordinary, and

immediate jurisdiction over laics, priests, and bishops, would

be the same as to deny the primacy of the Pontiff himself,

and would therefore be heresy. Theutility of sending such

ambassadors will appear further on.

2. Practice of the Holy See witJi Regard to Sending Envoys.

The Roman Pontiffs have from the earliest ages of the

Church down to the present day exercised the right of

sending deputies or envoys to different parts of Christendom

whenever they deemed it opportune. Sometimes they sent

them without any jurisdiction and merely to arrange some

diplomatic affair, or to defend the rights of the Holy See at

the courts of rulers. At other times the} sent them with

full power to decide causes, etc., and that either temporarily

and for a short time, or permanently and for an indefinite

period.

Examples of permanently established apostolic delega

tions or nunciatures with Papal jurisdiction occur already

in the early ages ot the Church. Thus Leo the Great (440-

461) sent the Bishop Julian to Constantinople to reside as

his permanent envoy there, and confided to him his own

Pontifical authority to be exercised in the East.246

Likewise

Pope Gregory the Great (590-604), following the example

of his predecessors, sent permanent legates to Sicily, and

conferred upon them ample jurisdiction over the faithful,

clergy, and episcopate, in order, as he says, that where he

*4S Letter of Card. Jacobim cited above.

446 Leo M., ep. in; Phillips, K. R., vol. vi., p. 961.




could not bepersonally present

his antJwritymight

be repre

sented and exercised by his envoys The ambassadors of the

Pope whose legateship was permanent had full authority to

watch over the diocesan administration of bishops, to see

that the disciplinary laws of the Church were carried out,

etc."

3

The permanent envoys, besides being clothed with

Papal jurisdiction, acted also in a diplomatic capacity for

the Holy See.

Thus we see that already in the fourth and fifth and sixth

centuries of the Church there were three kinds of apostolic

ambassadors :

(a) Those who were sent for some particular

and temporary affair, with or without jurisdiction. Their

legateship was transient, (b) Those whose legateship was

permanent, and who acted in both a jurisdictional and a dip

lomatic capacity. They were called apocrisiarii or responsales.

(c) Vicars apostolic, that is, bishops of countries selected by

the Pope to act as his legates in their respective districts."49

It is well known that later on the Roman Pontiffs con

tinued to appoint and send their envoys to various parts of

Christendom. Pope Innocent III.(i 198-1216), in sending his

legate, wrote thus to the Greek emperor :

a&0 " Our Lord has

appointed the Holy See to be the head and teacher of all

Christendom. As the Roman Pontiff, being overwhelmed

with innumerable cares, cannot personally attend to every

thing, he is naturally obliged to appoint assistants and repre

sentatives, and to perform throtigh them what he cannot do in

person. For that purpose he confides his poivers to others, so

that what is done

by

them is to be

regarded

as done by him

self. As the condition of the Church at Constantinople re

quires the sending of a legate a latcre, we have determined

to send Pelagius, bishop of Albano, and have appointed him

947Greg. M., 1. i., ep. i; Phillips, 1. c., pp. 693, 699.

848Phillips, 1. c., p. 693.

*49Phillips, K. R., vol. vi., p. 901.

SM)Ep. 104.

-




in our stead, to eradicate and destroy, to build up and to

plant,what he deems proper, in the Lord." As will be

seen in this celebrated letter, Pope Innocent 111. points out

the Pontiff s right to send envoys with the power of the

Pope himself;that is, in such a manner that they take the

place of the Pope and act in his stead.

The present practice of the Holy See is too well knownto need explanation.

The Holy See has, at present, its nun

cios at Paris, Vienna, Madrid, Lisbon, Munich, etc. There

are also in a number of missionary countries, v.g. tat Con

stantinople, in Egypt, in Greece, etc., apostolic delegations or

legateships permanently established, and depending upon

the Sacred Congregation of Propaganda."

2

Recently, by a

Brief of Pope Leo XIII. issued on the 24th of January, 1893,

a permanent apostolic delegation has been established in

the United States, with the learned and able Archbishop

Satolli as its first incumbent.

Apostolic delegations, or nunciatures, are composed, as a

rule, each, of the nuncio or delegate, of an auditor, and of a

secretary,

all

appointed

either by the Pope himself, through

his cardinal secretary of state, or by the Sacred Congrega

tion, upon which they depend. Hence the auditor and the

secretary are not appointed or removed by the nuncio or

delegate, but. by the Pope, or by the Sacred Congregation.

The nomination of these officials is to the apostolic delega

tion, not to the person of the apostolic delegate. Their

tenure of office does not dependon a

changeof the incum

bent of the delegation or nunciature, but continues till re

voked by the Holy See. The auditor prepares all the cases-

and matters brought before the delegate, and is his adviser

on all points connected with the delegation.The secretary

has charge of the delegate s correspondence."

6

SS1Phillips, 1. c., vol. vi., p. 686.

"

Gerarchia Cath. di Roma, anno 1892, p. 365.

863 Cf. Phillips, K. R., vol. vi., p. 74.




3. Various Kinds of Apostolic Envoys.

We observe here again that we speak, in the present

treatise, only of those apostolic delegates or envoys who

are vested with ecclesiastical jurisdiction to be exercised in

the name and stead of the Pope himself. Popes, as we haveseen, were wont, in former times, to send their envoys or

representatives sometimes on temporary and transient mis

sions, sometimes on permanent delegations. In the latter

case, when one delegate or envoy was recalled, resigned, or

died, another was sent by the Pontiff to succeed him. It is

still the custom of the Holy See to send temporary and per

manent delegates or ambassadors. Hence apostolic legate-

ships or delegations are, at present, either temporary or

permanent.

Again, in former times the Pontiffs selected as their

envoys sometimes subdeacons and deacons, oftener bishops,

and in matters of great importance even cardinals. Pope

Gregory VII. usually selected cardinals to act as his envovs

in his great work of reforming thelaity, clergy, and episco

pate of his times. At the present day the Pontiffs gener

ally appoint titular archbishops, and sometimes, though

rarely, and only for exceptionally grave matters, cardinals

to act as their ambassadors.

When cardinals are chosen to act as Pontifical envoys,

they are, owing to their exalted

dignity,vested with the

fullest powers to act in the stead and name of the Holy See.

When titular bishops or archbishops are sent, they are

clothed with ample powers indeed, but yet not with those

full powers which are confided to cardinals who are

legates.

From what has been said, it will be seen that there are,

atpresent, three kinds of apostolic envoys or ambassadors:




1. Legati a lature, that is, envoys who are cardinals.

They are legates of the first rank, and are called legates a

latere because, owing to their close relations with the Sover

eign Pontiff, they are said to be sent from his side (a latere).

2. Legati missi, or Papal envoys who are titular bishops

or archbishops. They are legates of the second rank.

Thev are called nuncios (nuntii apostolici) when theyare

sent to reside permanently at the courts of sovereign rulers;

internuncios (internuntii) if they reside elsewhere or act

only provisionally. A nuncio, acting as such, even after

being elevated to the cardinalate, is named pronuncio (pro-

nuntius). Nuncios, according to the present discipline, rep

resent the Holy See in a diplomatic capacity, and are also

clothed with ample Pontifical jurisdiction over the laity,

clergy, and episcopate of the countries where they re

side. When the Icgati missi of which we speak in the

present paragraph are sent either to the courts of temporal

rulers outside of Europe or to missionary countries, they

are termed Apostolic Delegates (Delegati Apostolici).

3. Legati nati (legates born), called thus in contradistinc

tion to the legati missi (legates sent), are those to whose see

or ecclesiastical dignity the office of Papal legate is at

tached. The Archbishops of Canterbury and York in Eng

land, the Archbishop of Rheims in France, etc., were legati

nati. Since the fifteenth century, however, the powers of

the legati nati have become entirely extinct."4

At present

they retain but the name or title;the office itself no longer

exists.a>5

Consequently it is unnecessary to dwell upon

them further in this work. In Sicily the king himself was

legatus natus of the Holy See and exercised his legatine

rights through a special tribunal." This tribunal, named

Monarchia Sicula, was abolished by Pope Pius IX. in1867."

9MSanti, 1. i., t. 30, n. 5.

J56Phillips, Lchrb., p. 235.

S66Salzano, 1. ii., pp. no, in ; 1. i., p. no. Walter, p. 270.



304 Oil Ike Assistants or Ministers

| 4. Powers of Apostolic Envoys.

The legati nati are extinct at the present day, except as

to their name. Hence there are now only two classes of

apostolic envoys or representatives : (a) legates a latere;

(ft) apostolic delegates and nuncios. We shall therefore

speak first of the powers of legates a latere ; next of those of

apostolic delegates and nuncios.

I.

Powers of Legates"

a latere."

Legates a latere, or those apostolic envoys who are car

dinals, are, owing to their cardinalitial dignity, the rep

resentatives of the Holy See in the highest and fullest

sense of the term, and are therefore, by their very appoint

ment as apostolic envoys, vested with the most extensive

Papal jurisdiction over the country to which they are sent.

Their powers are consequently more ample than those of

apostolic nuncios and delegates. They enjoy certain pre

rogatives of honor. When they are present, archbishops

and bishops should not perform certain ecclesiastical func

tions, such as blessing the people, .which it would be unbe

coming for them to perform if the Pope himself were

present. Nay, even other apostolic envoys should not, in

their presence, make use of their insignia. Any dishonor

or disrespect exhibited to them is regarded as shown to

the Holy Father himself."8

Q. What are the peculiar powers of legates a latere ?

A. I. These legates have, by virtue of their appointment

** Phillips, K. R., tbl. vi., pp. 726, 727.




as apostolic envoys, full and ample power to exercise, in the

name and in the stead of the Pope himself, ordinary ecclesi

astical jurisdiction over the laity, clergy, and episcopate of

the country to which they are sent. We say, in the name of

the Pope himself. For, as we have seen, Papal envoys act

for the Pontiff himself take his place and represent his

person and powers and have therefore, in principle, thesame jurisdiction as the Pope himself. Consequently their

jurisdiction is, like that of the Pope himself, immediate, not

merely appellate, except in the causes specified by the

Council of Trent."8

II. In consequence of their supreme, ordinary, and im

mediate Papal jurisdiction, legates a latere, besides being

vested with the powers which are conferred upon apostolic

nuncios and delegates, as we shall see below, possess the

following exclusive rights, which are not, as a rule, con

fided to apostolic nuncios and delegates :

1. Wherever a legate a latere is present the jurisdiction

of all other apostolic legates or envoys is suspended for the

time being.260

2. He has ordinary jurisdiction over regulars who are

exempted from the authority of bishops. Consequently he

can hear and adjudicate all causes of exempted regulars

correct and punish them, if need be.261

3.He can confirm the election of archbishops, bishops,

and of exempted prelates of regulars,268

save where this has

beenspecially

reserved to the Pontiff himself. But he can

not, except by a special Papal mandate, unite or divide

K* Sess. 24, cap. 20, de Ref.

560Gregor. IX.. cap. 9, de off. leg. (i., 30); Glossa, ib., v. de latere nostro.

*61 Glossa in cap. i, de off. leg., v. universas; Schmalzg., 1. i., t. 30, n. 4.

*MCap. Si Abbatem 36, de elect, in 6

(i. 6). Legates other than those a

latere cannot do this except when they receive a special mandate from the Holy

See to that effect (cap. 36 cit.).




bishoprics, nor transfer bishops from one see to another,

nor depose bishops."

65

4. With regard to (a) granting dispensations, v.g., from

the impediments of marriage ; (b) giving absolutions, v.g.,

from censures and irregularities ; (c) solemnizing or assist

ing at marriages in the place of parish priests,284

the legate

a latcre has concurrent jurisdiction with every bishop of his

district or province.2 "

5.He has ordinary and concurrent power with every

bishop of his province to appoint to any and all parishes,

benefices, or ecclesiastical offices situate in the country to.

which he is sent.36 &

6. Both in matters relating to parishes and other eccle

siastical offices, and in all other matters whatsoever, he

can do in every diocese of his province whatever each

bishop can do in his own diocese, nay, more than the bishop

can do, excepting only those things which are expressly and

specially withheld from him by the Pope or forbidden by

the law of the Church, v.g.,in the Council of Trent, sess. 24,

cap. 20, de Ref.267

7. Finally, he has, of course, also all the powers of other

Papal envoys who are not cardinals. The latters powers

will now be explained.

II.

Powers of Apostolic Nuncios and Delegates.

Cardinals are at present sent very rarely as Papal en

voys. As a rule, titular archbishops or bishops are now

selected and sent from Rome to act as envoys of the Holy

263Cap. 3, 4, de off. leg.

M4Schmalzg., 1. i., t. 30, n. 4.

265Phillips, K. R., vol. vi., p. 734.

216 Innoc. IV., cap. i, de off. leg. in 6; cap. 31, de praeb. in 6.

267 Schmalzg., 1. c.




See. Thus our Delegate Apostolic is a titular archbishop.

It is therefore very important to explain the powers of

these envoys, who are called apostolic nuncios and dele

gates. They are, as we have seen, apostolic envoys or rep

resentatives of the second rank, and as a rule possess, even

when appointed cum potestate legati a latere, Papal jurisdic

tionin

a manner less extended than is vested in cardinal

legates. Hence, unless they are expressly and specially

commissioned to that effect, they do not possess the powers

enumerated above as belonging to legates a latere.

Yet apostolic nuncios and delegates are true represen

tatives of the Holy See. They act in the name of the Pope,,

and have in principle, like legates a latere, the same power

as the Pope himself.

Q. What, then, are the powers of Papal nuncios and

delegates ?

A. I. According to the law and discipline of the Church

as now in force, these apostolic envoys have, by virtue of

their appointment as apostolic nuncios or delegates, the

right to exercise, in the name and in the stead of the Pope

himself, ordinary ecclesiastical jurisdiction over the laity,

clergy, and episcopate of the country to which they are

sent.26 & The country to which they are sent is called their

province, because they resemble the old Roman governors

and proconsuls. For as the latter were sent by the Roman

emperor to govern the various provinces of the empire in

his name and with his authority, so apostolic delegates

and nuncios are sent by the Pope to govern in his name,

spiritually and ecclesiastically, certain countries of Christen

dom."

We say, in the name of the Pope himself. For these

apostolic envoys take the place of the Roman Pontiff himself,

represent his powers and his person, and have therefore in

""Clemens IV.. cap. 2, de off. leg. in 6 (i. 15); Schmalzg, I. i.(

t. 30, n. 2.

- 69 Clemens IV., cap. 2 cit.




principle the same jurisdiction as the Pope himself. They

are sent by the Roman Pontiff, with his own power, in

order to act in his stead and in his name, in all matters

falling under his jurisdictionas the head of the Church.

Consequently their jurisdiction is, like that of the Pope

himself, immediate, not merely appellate, save with regard

to the causes specified by the Council of Trent.270

We say also, over the laity, clergy, and episcopate, etc.;for

as the Pope possesses supreme and immediate ordinary juris

diction, not only over the laityand clergy, but also over

bishops and archbishops, so apostolic nuncios and delegates,

representinghim as they do, have supreme papal jurisdic

tion, not only over the laics, but also over the priests and

bishopsof their district or

province.

171

II. In virtue of their supreme, ordinary, and immediate

Papal jurisdiction, apostolic delegates and nuncios possess

the following powers:

i. They have the power of supreme inspection and direc

tion in regard to the ecclesiastical affairs of their province.7*

For it is their duty to eradicate and punish crimes, and to

plant and build up virtues.

51

Consequently, as Cardinal

Jacobini, Papal secretary of state, writes, in the letter al

ready quoted, if the authority of bishops should always and

in all matters be subject to that of the Pope, and if they

cannot exercise their power against his will and against the

rules laid down by him, so likewise should the jurisdiction

ot bishops never be exercised against the prescriptions of

the apostolic nuncio or delegate. Hence the actions of

bishops, taken individually or collectively, is always subject

to the Pontiff s representative.

2., Every apostolic nuncio or delegate can and should, if

need be, reform the conduct and correct or punish, v.g., by

970Sess. 24, cap 20, de Ref.

*"

Schmalzg., 1. i., t. 30, n. 2.

*"

Arg. cap. 2, de off. leg. in 6.""

Reiff., 1. i., t. 30, n. 14.




ecclesiastical censures, the excesses, not merely of the laity

and the clergy, but also of the bishops and archbishops of

his province or of the country to which he is sent. For he

is their judge, their ordinary, and their superior,"

4

and it is

his right and duty to extirpate and destroy whatever is evil

and contrary to the law of the Church, and to build up and

to plant whatever is good and proper."

5

3. Apostolic delegates and nuncios can enact for their

entire province permanent statutes, i.e., such as will remain

in force even after their legateship hasexpired," v.g., by

their recall or resignation.

4. They can and should preserve,in their province,

loyalty

and fidelity to the Holy See, and particularly enforce

therein the laws of the Church.9 "

5. They can, with regard to the appointment of bishops,

inquire into the merits of the various candidates,87

and send

the information obtained by them to the Holy Father.*1

Hence the Apostolic Delegate in the United States can de

mand that the lists of the candidates for vacant sees, selected

by the irremovable rectorsand the diocesan consultors on

the one hand, and by the bishops of the province on the

other, shall be sent to him, so that he may inquire into the

merits of the candidates and forward his information to

Rome.

6. As we have shown, apostolic envoys, whether they

are nuncios or delegates, can exercise their supreme Papal

jurisdiction in a direct manner and not merely on appeal.

Hence, prior to the Council of Trent, they could and did

hear and decide, even in the first instance, all contentious

causes whatever, whether relating to marriages or parishes

and ecclesiastical offices, and other civil affairs, or criminal

574Schmalzg., 1. i., t. 30, n. 2. However, he cannot depose bishops.

& 7i Clem. IV., cap. 2, de off. leg. in 6."*

Cap. x., de off. leg. (i. 30).

177Schmalzg., 1. c.

* 18 Ib.m Ex cap. 4, de off. leg.



1O On the Assistants or Ministers

and disciplinary matters.

2

But owing to the danger of

misunderstandings and conflicts of authority, the Council of

Trent modified the immediate contentious jurisdiction of all

Papal envoys, even of those a latere, and made it appellate,

in the above causes." 1

Accordingly, at present, apostolic

delegates and nuncios can as a rule hear and decide such

causes only on appeal from a definitive or a quasi-definitive

sentence, or from a decision which, though not final in form,

is yet, in reality and in its effect, tantamount to a final deci

sion, or on appeal from a grievance which cannot be re

paired or undone by a final sentence.262

We have said, as a rule. For they can hear and decide

the above causes, also in the first instance, (a) where the

ordinary has neglected to terminate them within two years

from the beginning of the litigation ; (b) when they are

specially and expressly authorized by the Holy Father;1"3

(c]when both the bishop and the parties consent.

284

We have said that apostolic delegates and nuncios can, at

present, hear and decide contentious causes, not in the first

instance, but only on appeal. Can they decide such causes

also when theright

of

appeal

has

lapsed

or is denied

by

the

general law of the Church ? We will suppose a practical

case. A bishop has decided a case, judiciallv or extrajudi-

cially. The party who feels aggrieved by the decision

neglects to appeal within ten days, and thus loses the right

of appeal. Can he nevertheless bring his case before the

apostolic delegate, by way of simple recourse per viam re-

cursus f Yes."

6

Why ? Because the Pope, in whose nameand by whose supreme authority the delegate acts, can re-

"""

Cap. i, de off. leg. (i. 30).2fl Cone. Tnd., sess. 24, cap. 20, de Ref.

""

Cf. Cone. Trid., sess. 22, c. 7, de Ref., cap. 3, de app. in 6C

(li. 15).

283 Cone. Trid., sess. 24, eap. 22, de Ref.

1184S. C. C., 4 Aug. 1691 ; Can. et deer. C Tnd., Schulte et Richter, p. 389.

286

Cap. i,de off.

leg.(i.

36;.



of the Sovereign Pontiff. 3 1 1

v

ceive and decide complaints, by way of recourse, even after

the term granted for appealing has elapsed.

Of course, the apostolic delegate or nuncio, being pos

sessed of ordinary Papal jurisdictionover the entire laity,

clergy, and episcopate of his province, can, like any other

ordinary, hear and decide causes, either in person, or through

otherecclesiastics

delegated by

him. The jurisdictionof

the person delegated by the apostolic delegate or nuncio

continues even after the apostolic nuncio s or delegate s

jurisdictionhas expired, v.g., by his recall, death, etc., pro

vided the citation of the parties has taken place before the

lapse of the apostolic legate s jurisdiction.2 "

7. One of the principal rights and duties of apostolic

nuncios and delegates is the visitation of the country ordis

trict to which they are sent.3 " The object of this visitation

by the apostolic envoys is to eradicate and destroy what is

opposed to the law of the Church, and to build up and to

plant what is in harmony with it.SM

Hence, on occasion of

their visitation, they can,2 9

in the same manner as bishops,

demand the procuratio or travelling expenses from all the

churches and ecclesiastical institutes visited by them.260

8. Moreover, apostolic delegates and nuncios can, by

virtue of their general mandate and without any special

authorization from the Pope, convene and preside over pro

vincial and even plenary or national councils.291 We say, over

provincialcouncils. For these Papal envoys possess, in every

province of their district, the same jurisdiction which each

metropolitan has in his province. Now the metropolitan

can, by his ordinary authority, convoke and preside over

provincialcouncils. We say also, and even plenary or na-

9MCap. 10, de off. leg. (i. 30) ; Schmalzg., 1. i., t. 30, n. 3.

Cap. 2, de off. leg. in 6C

(i. 15).288

Phillips, K. R., vol. vi., p. 733-

"

Cap. 17, de Cens. (iii. 39) ; cap. n, de praescr. (ii. 26).

2>0

Cap. 21, de Cens. (iii. 39).a "

Bouix, de Cone. Prov., p. 75.



312 On the Assistants or Ministers*

tional councils. For, as we have seen, apostolic delegatesare vested with the supreme, ordinary, and immediate juris

diction of the Pope himselfa92

over the entire country com

mitted to their care, and therefore can, like the Pope

himself, convene and preside over plenary or national

synods.

9. Finally, apostolic delegates and nuncios can, speaking

in general, perform in the country assigned to them not

only what a bishop can do in his diocese and an archbishop

in his province, but also what the Pope himself can do,288

excepting those things only which are reserved as special

prerogatives to the Supreme Pontiff.294 Now some matters

are reserved to the Pope by the general law of the Church,

v.g.,the causae majores ;

29Bothers by the Pontiff himself,

when he establishes an apostolic delegation or appoints

the apostolic delegate. For it is plain that the Pope is at

liberty to confide to his envoys or representatives, whether

they be called apostolic delegates or nuncios, the exercise of

his own supreme jurisdiction in the measure which seems to

him proper.296

Q. Whatpowers

are not

possessed by apostolic

dele

gates or nuncios by virtue of their general mandate, or by

their very appointment?

A. We have seen above that apostolic delegates possess

the supreme power of the Pope delegating, in ail things

save those which are reserved to the Pope either by the

58S Pope Pius VI., in his celebrated Brief de Nuntiaturis, writes:"

Ro-

manus Pontifex . . . suo fungitur apostolico munere per ecclesiasticos viros,

sive stabiles, sive ad tempus, veluti magis expedite censuerit, delegates in iis

dissitis locis ubi ipse interesse non potest; praecipiens eisdem, ut ibi suas -vices

obeant, eamqitejurisdictionem exerccant, quam is per se si adesset, exerceret." Cf.

Bouix, de Cone. Prov., p. 80.

293Arg. cap. 2, de off. leg. in 6. "*

Schmalzg, 1. i., t. 30, o. 2.

" 8

Cap. 4, de off. leg. (i. 30).

*

Letter of Card. Jacobin , Apr. 15, 1885, above quoted.




Pope himself or by the general law of the Church. We

shall now enumerate the chief matters thus reserved and

.therefore not within the competence of apostolic delegates.

Accordingly, i. Apostolic delegates cannot hear and de

cide the causae majores, such as the transfer or removal of

bishops, the union or division of dioceses, etc.2 "

2. They

cannot interfere in a cause which has been delegated

to another ecclesiastic by specialmandate of the Pope or of

.a Sacred Congregation.298

3. Likewise, they cannot receive

an appeal from the sentence or decision of an ecclesiastical

judge delegated by the Pope or by a Sacred Congrega

tion to adjudicate a cause.2 & 8

4. Nor can they do anything

in a cause which has been referred to the Holy See.800

5. Again, the jurisdictionof apostolic delegates or nuncios

does not extend to exempted regulars.30

6. They cannot

appoint rectors of parishes (with us, quasi parishes).808

7. Their jurisdictionis restricted as to place ;

that is, it is

confined (a) to the limits of their province, and () to the

persons living therein. Hence, when a delegate apostolic

is outside his

province,

he gannot exercise contentious juris-

diction, such as to absolve from censures, even with regard

to those who live in his province.30

We have said in the question, by virtue of their general

mandate or by their very appointment. For apostolic dele

gates and nuncios may and frequently do receive from the

Pope, by special mandate or authorization, the power to

arrange and decide the aboveaffairs and all other matters

reserved exclusively to the Pope.

From the above it will be seen that the powers of an

apostolic delegate are determined, (a) as to their ordinary

297Cap. 4, de off. leg. (i. 30).

"

Cap. 2, de off. leg.

""

Arg., cap. ii, de off. jud. deleg. (i. 29).

s 8

Cap. 5. de off. leg.; Schmalzg., 1. i., t. 30, n. 3.

301

Cap 36, de elect, in 6 (i. 6); Schmalzg., 1. c., n. 6.

"

Cap. i. de off. leg. in 6.303

Cap 9, de off. U-g. (1.30).




and general extent, by his very appointment or bv his general mandate

;

301

(b) as to their exceptional nature and

extent, by his special letters of authorization from the Pope.

Lastly, in his capacity of representative of the Holy

Father, the apostolic delegate is responsible for his acts

only to the Supreme Pontiff or the Sacred Congregation

upon which he depends, and not to thelaity, clergy, or epis

copate of the country where he resides. Hence his acts

should not be publicly criticised by thelaity, clergy, or

episcopate, who, however, as the cardinal secretary says in

the letter quoted,3 "

have the right to have recourse to

Rome when they have reason to believe that the apostolic

delegate or nuncio has gone beyond the limits of his mis

sion or abused his powers.

5 . Support of Apostolic Delegates and Nuncios.

Apostolic delegates and nuncios are sometimes sup

ported by the Holy See itself, when it has the means to do

so.308

This is the case at present with the Apostolic Dele

gate in this country, who receives annually $6000 from the S.

Congr. de Prop. Fide. At times, however, their means of sup

port comes from contributions of thelaity, clergy, and episco

pate of the country to which they are sent. In fact these

Papal envoys labor for the spiritual welfare of the faithful,

the clergy, and the episcopate of the country committed to

them.307 Hence the words of St. Paul apply to them :

3U8"

If

304 The Roman law says: Cui jurisdictio data est, ea quoque concessa esse

videntur, sine quibus jurisdictio explicari nonpotest,"

1. 2 ff., de jurisd. (ii. i).

Pope Alexander III. enacts: "Ex eo quod causa (Delegatio Apostolical sibi

(Delegate Apostolico) committitur, super omnibus, quae ad causam (Delega-

tionem) ipsam spectare noscuntur plenariam recipit potestatem." Cap. 5, de

off. jud. del. (i. 29).

300 The letter is printed in the Moniteur de Home. May 3, 1885.

aoePhillips, K. R., vol. vi., p. 732.

M1Cf. cap. n, de praescr. (ii. 26).

308I. Cor. ix. ii.




we have sown unto you spiritual things, is it a great matter

if we reap your carnal things?"There is no doubt that,

should occasion offer, v.g.,if the Holy See should lack the

means, the laity,the clergy, and the episcopate of this

country would cheerfully supply the Apostolic Delegate

with a generous and ample support. The movement now

on foot to provide himwith an official residence at Wash

ington is sufficient proof of this.

6. How the Powers of Papal Envoys Expire.

Q. In how many ways does the jurisdiction of apostolic

legates, nuncios, and delegates lapse ?

A. It is necessary to distinguish between apostolic dele

gations which are temporary and those which are perma

nent. Where the apostolic delegation is merely temporary

or for a determinate affair only, the delegate s jurisdiction

expires with the lapse of the time for which he was

appointed,309

or when the affair for which he was sent is

terminated.

In the second case, namely, where the apostolic delega

tion is permanently established, as is the case in this country,

the apostolic delegate s jurisdiction expires in the following

ways: i. When he has referred a matter or cause to the

Pope his jurisdiction expires, so far as concerns the cause

or matter referred to the Pope by him.310

2. Where of his own accord he leavesthe

country

assigned to him. Here, however, we must distinguish: If

he leaves his province with the intention of not returning to

it, which he cannot do without leave from the Pope, his

power and jurisdiction cease completely the moment he has

gone away.3 "

If he leaves only temporarily, with the inten-

SoCap. 4, de off. jud. del. (i. 29).

>*

Cap. 5. de off. leg. (i. 30).

811L. 3 ff., de off. praes. (i. 18).



316 On tJie Assistants or Ministers

tion of returning soon, his contentious jurisdiction is sus

pended during such absence.313 We say contentious ; for he

retains and can exercise his voluntary jurisdiction during

such absence.313

3. When he is recalled by the Pope, and the recall

becomes legitimately known to him. Until the revocation

comes to his knowledge, the acts performed by him are

valid, even though done after his recall. 314

Nay, it would

appear that even after the recall becomes known to him he

retains jurisdiction until he has actually left his province.316

4. By the death of the apostolic delegate. Of course,

as far as the dead delegate himself is concerned death takes

from him all power. But the question is, Do the powers of

the apostolic delegate lapse with his death in such a, manner

that they do not pass to his successor except by a new grant

from the Holy See? Here we must again distinguish be

tween the ordinary and the extraordinary powers vested in

him. Whatever extraordinary jurisdiction is conferred uponhim is to be looked upon as personal and not as annexed to

the office or the apostolic delegation. Therefore it lapses

with the death(also

with therecall, resignation, etc.)

ofthe

apostolic delegate.

With regard to the powers ordinarily vested in the

apostolic delegate there are two opinions. One looks uponthem as personal rather than as annexed to the office or the

apostolic delegation, and in consequence contends that they

expire with the incumbent s death and are to be renewed

with regard to the successor.316

The other opinion holds

that they are annexed to the office itself or the apostolic

delegation, and therefore do not lapse with the death of the

apostolic delegate, but pass to his successor without any

new grant or indult from the Holy See.317

918Schmalzg., 1. i., t. 30, n. 10.

31fL. 2 ff., de off. Proc. et leg. (i. 16).

314

Cap. 4, de rest spol. (ii. 13).3IB

Schmalzg., 1. c., p. 5.

3 "

Schmalz"., 1. i., t. 30, n. ro.s "

Cf. Reift, 1. i., t. 30, n. 44.




Of course, all depends upon the mind of the Holy See.

If the Roman Pontiff intends the powers in question to be

attached to the delegation itself and not merely to the person

of the delegate, they do not lapse with the death, recall, or

resignation of the apostolic delegate; otherwise they do.

Now in establishing a permanent apostolic delegation it is

plainly the mind of the Holy See that the powers spoken of

shall be annexed to the office or delegation itself, and not

merely vested in the person of the delegate.

5. Does the jurisdiction of apostolic delegates, nuncios,

or legates expire with the death of the delegating Pope?

It does if the apostolic delegate is appointed with the clause

ad beneplacitum legantis, i.e., of the Pope. For the pleasure

or will of the Pope (beneplacitum Pontificis) expires with his

death, and consequently also the power made contingent on

such will orpleasure."

8

But when the apostolic delegate is appointed either with

out the above clause or with the clause ad beneplacitum nos

trum (Pontificis) et hujus S. Sedis which is the clause employed

by Pope Leo XIII. in appointing the apostolic delegate for

the United States his jurisdiction does not lapse with the

death of the delegating Pontiff. For the supreme Papal

power of apostolic delegates is ordinary and therefore does

not expire with the death of the Pope appointing or dele

gating.31 *

Moreover, the Holy See does not die, and conse

quently neither the power conferred ad beneplacitum S. Sedis.

Hence also Papal envoys are called apostolic delegates,

nuncios;or delegates, nuncios, and legates of the Holy See.

The above holds even where the Pope dies before the

apostolic delegate has reached the country assigned to him,

or where as yet he has not exercised a single act of his

apostolic delegation.320

From all this it will be seen that when a Pope dies, apos-

118

Schmalzg., 1. i., t. 30, n. n.119

Clem. IV., cap. 2, de off. leg. in 6 (i. 15)."

Schmalzg., 1. c.



*8 On the Assistants or Ministers

tolic delegates appointed ad beneplacitum S.

always the case where the apostolic delegation is perma

nently established remain apostolic delegates and retain

all their supreme jurisdiction until they are recalled by the

successor of the dead Pontiff, or sede papali vacante by the

Sacred College of Cardinals. However, pending the vacancy

of the Papal chair, the Sacred College of Cardinals cannot,

as a rule, recall apostolic delegates except for grave and

urgent cause. The reason is that the Sacred College can

not, pending the vacancy of the Papal chair, exercise full

Papal jurisdiction, but merely expedite certain matters

which do not admit of delay.

522. Q. What are the laws of the United States in rela

tion to ambassadors ?

A. i. Ambassadors are exempted absolutely from all

allegiance and responsibility to the laws of the country to

which they are deputed.321

2. Their persons are deemed in

violable. 3. An ambassador, while he resides in the for

eign state, is considered as a member of his own country;

and the government he represents has exclusive cognizance

of his conduct and control of his person.

3 "

4. The attendants of the ambassador and the effects in his use are equally

exempt from foreign jurisdiction. 5. A person who offers

violence to ambassadors, or is concerned in prosecuting and

arresting them, is liable to imprisonment for three years

and to a fine at the discretion of the court.1123

523. Q. Are these laws applicable to Papal legates?

A. A Papal legate may be sent to represent the Holy See,

either in a diplomatic capacity only or in matters purely

ecclesiastical. In the latter case he would be considered as

an ordinary resident of the country; in the former he

would rank with other ambassadors, and be entitled to

equal rights with them.

321

Kent, vol. i., p. 38.

"

Ib., p. 39.

IMIb., p. 182.




ART. II.

Of Apostolic Vicars Prefects, Commissaries, and Prothonotaries.

524. Vicars and Prefects Apostolic. There is a material

difference between the vicars-apostolic of antiquity and

those of the present day.324 The former corresponded to the

iegati nati of later times;the latter are those who are de

puted by the Pontiff to exercise the pastoral care in certain

churches or districts, not in tJieir own name, but that of the

Pope?"

1 *

The appointment of apostolic vicars is based on the

principle that the Pope, as bishop of the whole world, or as

ordmarius of the entire Church, has the direct ecclesiastical

management of all those places and dioceses where the

ecclesiastical regime is not organized in perfect conformity

with canon law.3

Hence, vicars-apostolic are appointed, I,

for missionary countries where as yet dioceses are merely

in the course of formation v.g., in the United States; 2, for

the Catholic portion of the community in countries that

have fallen from thefaith."

7

We said above,in

perfectcon-

fonnitv wit It canon law ; for the Holy See i.e., the Propa

ganda, which is, in this respect, the representative of the

Pope- -retains the direct management of these places, not

only until dioceses are simply formed (as in the United

States) or re-established, but until they are all, without ex

ception, perfectly organized i.e., placed on an entirely ca

nonical footing, having chapters, etc. ; in other words, un*:

l

canon law fully obtains. So long, therefore, as the orgam

zation of a diocese is in any way abnormal i.e., not con

formable to canon law the Propaganda has direct charge

of it.

3 "

3. Besides, vicars-apostolic are also appointed, in

M4Craiss., n. 8i =

.Ib.. n. 815.

: - 5Phillips, Lehrb , 126 ;

cfr. Walter, 132. 3M Phillips, l.c

ai6Ib.




urgent cases, where the administration of a diocese fully

organized becomes temporarily disordered v g., by the

absence, captivity, sickness, and the like of itsbishop.""

As the Propaganda has the immediate control of all places

having diocesan organizations, incomplete or abnormal, or

disordered, it is placed over all vicars-apostolic, whether

they be simple priests under the title of prefects, or bishops

in partibus, or ordinary bishops in the capacity of apostolic

delegates. Hence, also, the bishops of the United States

and of Ireland are not preconized in consistory, but pro

posed to the Pope by the Propaganda.830

525. Apostolic Commissaries (commissarii apostolici, delegati

Papae]. They are those persons whom the Holy See com

missions to take cognizance of and arrange certain matters

v.g., vicars-general, to whom the execution of matrimonial

dispensations is committed by the Holy See.3 "

The Holy

See, as a rule, selects as agents or commissaries only ecclesi

astical dignitaries canons, vicars-general, and superiors of

religious communities. Note. Apostolic delegates are ap

pointed either directly by the Holy See (delegati ab /tomine)

orby

thejus

communev.g:, by

the Council ofTrent (dele

gati a jure}?** As is evident, the commissaries of which we

here speak are delegati ab homine, not a jure.

526. Apostolic Protlibnotaries (protonotarii apostolici}.

These are of three kinds: \. Protonotarii participates or de

collegia; these alone have the full rights of the prothonotary-

ship. 2. Protonotarii supernumerarii or ad instar partici-

pantium ; they have nearly all the rights, so far as honorsare concerned (jura lionorificd], of the participantes. Hence,

they may wear the dress of prelates (habitus praelatitius)

i.e., the cassock (subtand) and mantle (mantellettum) of

violet, and the rochet : they may also celebrate pontifically,

"9

Phillips, I.e., p. 236.

330Ib., 1. c. ; cfr. ib., Kirchenr.

, vol. vi., pp. 746, 748.

331 Crais5.. n 817. &

ReiflF., lib. i., tit. xxix., n. 33, 34




though only with the consent of the ordinary. Prothonota

ries participates may celebrate private Masses, like prelates,

both in and out of Rome. But prothonotaries ad instar can

not, in celebrating private Masses, distinguish themselves

from simple priests. This is certain at present, as is evident

from the following words of the Const. Ap. Scdis Officium,

issued by Pope Pius IX. in 1872, regarding prothonotaries

ad instar :"

In Missis privatis quoad indumenta, caeremonias,

ministros, altaris ornatum, cereorum lucentium numerum,

protonotarii ad instar a simplici sacerdote non differant,

adeoque nullum prorsus ex ornamentis Pontificalibus pro

Missa solemni tantum sibi indultis adhibeant, atque ab omni

bus et singulis ritibus in

ipsa

Missa solemni sibi vetitis

peni-tus abstineant

"

(Const, cit, 18, ap. De Herdt, Praxis Pontif.,

torn, iii., p. 509). 3. Protonotarii honorarii are of a grade in-

ferior to the foregoing."

***CcaiM., B. 8:8.



CHAPTER IV.

OF PATRIARCHS, PRIMATES, AND METROPOLITANS.

ART. I.

Patriarchs.

527. Patriarchs (patriarcliae] are bishops who preside

not merely over one diocese or province, but over several

provinces

or districts.1

The dignity itself of patriarchs

dates back to the apostles.; the name came into use only

from the time of the Council of Chalcedon." Rights formerly

possessed by Patriarchs. They had power chiefly, i, to con

secrate metropolitans and give them the pallium ; 2, to as

semble and preside at patriarchal or national3

councils; 3,

to receive appeals from the sentence of metropolitans.

These rights may be summed upthus: The

jurisdictionex

ercised by patriarchs over metropolitans was similar to that

exercised in turn by metropolitans over their suffragan

bishops.1 The four great patriarchates of the Eastern

Church namely, of Alexandria, Antioch, Constantinople,

and Jerusalem having fallen into schism and heresy, have

long ago become extinct.6 The Holy See, however, in

order to preserve the memory of these patriarchates, still

creates titular patriarchs of these sees,6

who reside in Rome ;

they have only the title of patriarchs, but no jurisdiction,

excepting, however, the Patriarch of Jerusalem, who was

sent to his see by Pope Pius IX., and occupies it at present.

1

Craiss., n. 820.a

Soglia, vol. i., pp. 267, 268. Ib., p. 273.

4

Craiss.,n. 822.

*


Ib., p. 240

Craiss., n. 821.



Of Patriarchs, Primates, and Metropolitans, 323

Besides these, there are still in the Oriental Church several

actual patriarchs in communion with the Holy See. Thus,

the Chaldeans, Melchites, Maronites, Syrians, and Arme

nians, who are united with the Catholic Church/ have their

patriarchs, to whom the Holy See usually grants faculties

similar to those enjoyed by the patriarchs of old.9

The

Roman Pontiff is the patriarch of the Western or Latin

Church. Besides, there are in the Latin Church the patri

archs of Lisbon, Venice, and the West Indies; they are

called patriarchae minores. and have only the title, not the

jurisdiction, of patriarchs.10 The patriarchate itself is not of

divine but of ecclesiastical institution.11

ART. II.

Primates.

528. By primates (termed primates in the Latin, exarchi

in the Greek Church) are meant at present those who are

placed over several metropolitans." Primates formerly had

the right to convene national councils and receive appeals

from the sentence of metropolitans.13

These privileges have

lapsed, and, where primates still exist, they merely retain

the name or title,14

not the jurisdiction formerly attached to

the primateship.16

Salzano, however, observes that even

at the present day primatial jurisdiction is vested in the

Primate of Hungary and in the Archbishops of Toledo and

Armagh. In the United States, the Archbishop of Balti

more, by virtue of the praerogativa loci,

16

affixed to his see,

occupies the first seat in all councils, meetings, and the

like. This privilege, as is evident, is simply one of honor,

Walter, pp. 303, 304.*

Soglia, 1. c., p. 27^.10

Walter, pp. 303, 304.

11

Soglia, 1. c., p. 272."

Craiss., Man., n. 826;cfr. Craiss., Elem., 0.392.

"

Phillips, 1. c., p. 240.MSoglia, 1. c., p. 275.

16Salzano, lib. ii., pp. 126, 127 ;

cfr. Walter, p. 304.

" Deer, Aug. 15, 1858, ap. Cone. PI. Bait. II., app. xxx , p. 343,



324 Of Patriarchs^ Primates, and Metropolitans.

not of jurisdiction, and includes no primatial rights what

ever.17

ART. III.

Metropolitans.

529. A metropolitan (inetropolitanus^ metropolita, archi-

episcopus) is the bishop of a metropolis or chief city of a

province, who presides over an entire province.19

Metro

politans are also named archbishops, although, strictly

speaking, the former are those who have suffragan bishops,

while the latter may not have any.19

Every metropolitan,

therefore, is rightly called an archbishop ;but not every

archbishop

is a

metropolitan/

Thedignity

of

metropolitans, though not of divine institution, is nevertheless very

ancient, and, according to a highly probable opinion, dates

back to the apostles themselves.21

Thus, many canonists

hold that Titus and Timothy were created metropolitans b}

St. Paul;the former of Crete, the latter of Asia.

22

Powers

and Riglits of Metropolitans. I. Formerly the jurisdiction oi

metropolitans was very extensive.

23

Suffragan bishops coulddo nothing of importance without their consent. They had

the chief voice or part in the election of the bishops of their

provinces,2

etc. These ample powers came to be greatly

restricted in later times. 2. At present the metropolitical

jurisdiction, speaking in general, extends (a) over suffra

gans, (I)]over the subjects or dioceseners of suffragans. We

say, speaking in general ; what these rights are in particular

we shall now examine.25

530. Q. What are, at present, the rights of metropolitans

over their suffragan bishops f

" Our Notes, n. 34."*

Soglia, 1. c., p. 276 ;our Notes, n. 78, 79.

*

Salzano, 1. c., p. 127.M

Ferraris, V. Archiep., art. i., n. 3-5.

"

Craiss., n. 831."

Cfr. Cone. PI. Bah. II., n. 78.M

Ib, 79-81

"*

Craiss., n. 832."*

Phillips, Kirchenr., vol. vi., p. 821.



Of Patriarchs, Primates, and Metropolitans. 325

A. Chiefly these :

"

I. To convoke provincial councils

every thirdyear."

2. To make the visitation of their pro

vinces;but at present they can do so only when authorized

by provincial councils. As provincial councils are but

rarely held,28these visitations also have come to be discon

tinued. 3. To urge suffragans to comply with their episco

pal duties, especially that of residence. 4. Their judicial

power was restricted by the Council of Trent,29

so that at

present the more grave criminal charges against bishops

(causae criminates majores) can be decided by the Sovereign

Pontiff only; the less30

(causae criminates minorcs}, in pro

vincial councils. Metropolitans therefore can, at most, take

cognizance of >// causes of suffragans.81

531. Q. What are, at present, the rights of metropoli

tans in relation to the subjects of their suffragans ?

A. Metropolitans have jurisdiction over the subjects of

their suffragans chiefly in three cases:" on appeal, during

visitation, and by devolution.33

I. On Appeal (in appella-

tione). Thus, the subjects of suffragans may appeal to the

archbishop in all grievances whatever i.e., not only from a

juridical sentence of the bishop, but also from all gravamina

or abuses of episcopal authority, and consequently from

extra-judicial acts.34

II. During Visitation (in sacra visita-

tione).When visiting his province, the metropolitan may

exercise jurisdiction, i, in foro inferno, by hearing the con

fessions of, and absolving, either personally or through

others,all the

subjectsof

suffragans;he

mayalso absolve

from cases reserved to the suffragan ; 2, in foro externo, by

proceeding against notorious criminals, also against those

"

Cfr. Cone. PI. Bait. II., n. Si.** Our Notes, n. 79.

*Phillips, 1. c., p. 826; cfr. Cone. Trid., sess. xxir., cap. Hi., d. R.

"

Sess. xxiv., cap. v., d. R.so

Soglia, vol. i., pp. 276, 277"

Phillips, Lehrb., p. 243."

Ib."

Soglia, 1. c.. p. 277.

M Craiss, n 839 ;cfr. Cone. Trid., sess. xiii., cap. i., d. R. ;

sess. xxiv

cap. x. d. R.



326 Of Patriarchs, Primates, and Metropolitans.

who hinder him from exercising his jurisdiction, etc/6

111.

By Devolution (jure dt-volutioins]. When the suffragan,

whether in the exercise of voluntary or contentious jurisdic

tion/7

neglects to comply with the duties of his office, the

metropolitan acquires jurisdiction over the diocese of his

suffragan, and may remedy (jus supplcndi )the negligence ot

such suffragan.3 *

It is a controverted question whether

this rcniidial jurisdiction devolves upon the metropolitan

universally39

i.e., in all cases of negligence of suffragans or

only in those particular cases which are specified by the

canons of the Church. According to the more probable

opinion, which also corresponds to the present discipline of

the Church, it is limited to cases expressly laid down by

law.

40

Of these cases, determinedin

canon law, the follow

ing are some of the more important, and therefore deserve

special mention: i. If a suffragan bishop refuses to grant a

dispensation, grantable by h\m jure profrio, which, consider

ing the person, place, age, or the good of religion, should

be given, the metropolitan has the right to concede it. 2.

Metropolitans may appoint to parishes, offices, and the like,

of comprovincial dioceses,41

where appointments are not

made within the time prefixed by canon law." 3. Capitu

lar vicars, if not elected by the chapter within eight days

from the vacancy of the see, are appointed by the metropo

litan.4

In the United States the temporary administrator

is designated either by the bishop, while alive,44

or, in his

default, bv the metropolitan or senior suffragan. The per

manent administrator is appointed by the Holy See.

532. Specific character or nature of the jurisdiction oj

metropolitans, i, over their stiffragans ; 2, over the subjects of

KPhillips, 1. c.

*

Soglia, 1. c."

Reiff., lib. i., tit. x., n. 6. ^

**

Ib., tit. xxxi., n. 48.&

Ib., tit. x., n. 9, 10.

40Phillips, Kirchenr., vol. vi., pp. 832, 833.

4ICraiss., n. 842.

41Cfr. Devoti, lib. i., tit. iii.. n. 40.

43

Soglia, 1. c., p. 277.

44 Our Notes, n. 70-73 ;cfr. Cone. PI. Bait. II., n. 96. 97.



Of Patriarchs, Primates, and Metropolitans. 327

suffragans. \. In general it seems to be admitted that the

metropolitical jurisdiction over suffragans, as well as over

the subjects of suffragans,4

is not universal, but is to be

limited to cases expressly stated in canon law II. Never

theless, the jurisdictio metropolitana is not exercisible in the

same manner towards suffragans as towards the subjects

ofsuffragans. For,

I, so far as it rekr.es to

suffragans,

4

this jurisdiction is direct, immediate, and also ordinary.

The metropolitan, therefore, is the ordinarius^ and imme

diate superior of his suffragans.4

&

2. So far, however, as the

authority of metropolitans extends towards the subjects of

suffragans, it is only mediate49

i.e., exercisible only on ap

peal, etc., as was seen.

533. The Pallium. It is denned the chief ornament of

patriarchs and archbishops, and the symbol of the plenitude

of the pastoral jurisdiction conferred upon them by the

Holy See.60

Its form is that of a stole or band of white

wool, having a width of about three fingers ;it is worn over

the shoulders, forming a circle around the neck, and is em

broidered with four or six black or purple crosses.51

Moral

ly, the pallium signifies the lost sheep carried back to the

right path on the shoulders of the loving shepherd. Weask: Where and when can the pallium be worn by arch

bishops? i. At solemn or High Massonly;" 2, inside

every church, even though exempt, of the province ;

Mit

cannot be used outside the church or in the open air v.g., in

outdoor processions.64

3. Only on the more solemn feasts,

such as Christmas, the feast of St. Stephen, St. John, Cir-

44

Craiss., n. 836.45

Ib., n. 837. Phillips, Kir.benr., 1. c., p. 821

48

ReifF., lib. i., tit. xxxi., n. 35.*

Craiss., n. 83-3.

10Ib., n. 846 ;

cfr. Phillips, Lehrb., 130; Reiff., lib. i., tit. viii., n. 2, 3.

61

Salzano, lib. ii., pp. 130, 131.w

Ib.;

cfr. Phillips, Lehrb., p 245,

MArchbishops cannot, aside from a special privilege, wear the pallium

vutsiJe of their

provinces.

Cfr. Reiff., 1. c., n. 13 ;cfr. Cone. PI. Bait. II., n. 81.

*

Reiff., 1. c., n. 12-16.



328 Of Patriarchs, Primates, andMetropolitans.

cumcision, Epiphany, Palm Sunday, Easier, etc.;

also on theopening day of the provincial council. Titular patriarchsand archbishops (i.e., those in partibus) do not receive the

pallium, since they never reside in their provinces.

Q. What are archb- shor-s forbidden to. do before theyreceive the pallium?

A. We must distinguish between the functions or

powers of episcopal jurisdiction and those of episcopalorder. i. Archbishops-elect, like

bishops-elect," even

though not yet consecrated bishops, can exercise full

jurisdiction as Ordinaries of their respective dioceses as

soon as they have received and properly exhibited the

bulls of theirappointment." But they cannot, before re

ceiving the pallium, exercise any jurisdiction over the pro

vince, such as convoking provincial councils, receiving

appeals. 2. They can perform those episcopal functions of

order where they vest, not in pontificals, but merely, v.g.,

in stole, like simple priests, such as consecrating chalices,

vestments, etc. But they cannot, even though already con

secrated bishops, perform those episcopal functions of order

which require the use of pontificals, such as

dedicatingchurches or conferring orders.67

Finally, they cannot be

styled archbishops until they have received thepallium."

Observe that, at the death of an archbishop, his perpetual

coadjutor, if he has any, succeeds ipso jure that is, without

any new appointment from Rome or other formality and

hence becomes at once the Ordinary of the diocese, thoughbefore

receivingthe

pallium he is under the disabilitiesabove mentioned. However, the Holy See, when applied

to, easily allows archbishops-elect in this country to exercise

all the powers of archbishops, even before they receive the

pallium.

*5Supra, 11. 293.

56Infra, n. 616.

*Ferr., v. Archiep., art. iii., n. 14.

68

Phillips, Kirehenr., vol. vi., p. 844.



CHAPTER V.

OF BISHOPS.

SECTION I.

Of the Office anA Power of Bishops in General.

ART. I.

Gem*nl Powersof Bishops.

534. A bishop (c.piscopus, pontifex, summus sacerdos, an-

tistes, pastor, angetut, praesul] is defined : one who has re

ceived the plenitade of the priesthood as instituted by

Christ for the government of the Church.* As a portion of

the flock of Ch rst is usually assigned to a bishop, so also a

specialchurc i named cathedral, is set

apart

for him, where

he may, as it urere, in his own seat or cathedra, exercise pon

tifical funct> ns.1 The Pope alone can erect a church into a

cathedral rr designate the limits of a diocese.4

Cathedral

or epiv pal sees should be situate in the larger cities

only.

$35- Nature of the Episcopal Power in general. The power

ot bishops, speaking in general, is twofold.

(a) the powerof order and (b)

of jurisdiction. Whether bishops receive

their jurisdiction immediately from God or the Pope we

shall presently discuss ( n. 540). Suffice it here to say with

Phillips, Lehrb., p. 246 ;cfr. Ferraris, V. Episcopus, art. i

,n. 1-14.

Craiss., Elem., n. 397.3


-Ib, v

t>57 Phillips, I.e., p. 248.

329



330 Of Bishops.

Schmalzgrueber :*

"

Sed tenenda est tanquam verissima sen-

tentia, quae cum commuui TT. et canonistarum ait, potesta-

tcm jurisdictionis, quam habent episcopi, iisdem dari im

mediate ab Ecclesia seu Romano Pontifice."7

Whatever

opinion may be held, it is certain that bishops cannot

validly exercise any episcopal jurisdiction without having

been appointed by the Sovereign Pontiff to some see."

536. What is meant in general, i,by the potcstas o^Jinis ;

2, the potestas jurisdictionis of bishops ? \. T\\e potcstas ordi-

nts, which bishops receive in their consecration directly from

God, consists chiefly in the power of administering the sa

craments of confirmation (as ordinary ministers) and holy

orders,10

and of performing pontifical consecrations and

blessings. These rights or powers, belonging exclusively

to bishops, are named jura propria."Powers which

priests hold in common with bishops are called jura connnu-

nia v.g., the administration of baptism, penance, and the

like.13

2. The potestasjurisdictionis, which makes the bishop

the pastor and judge of his diocese,13

includes the power to

govern the whole diocese;the right of visitation

;the legis

lative, judicial,and executive

authority;the

rightto erect

and confer parishes, to receive the customary revenues,

to correct abuses, and decide causes;

14

the office of

preaching; of maintaining the purity of faith through

out the diocese; of providing lor the religious instruc

tion of the faithful in schools, colleges, and the like.

Hence, wherever the civil government, either entirely or

even but partially, excludes the influence of the Church from

schools, colleges, etc., it becomes the duty of bishops to en

deavor, by all means in their power, to establish schools in

which secular teaching is not opposed to the principles of

faith.16

8Lib. i., tit. xxxi., n. 26.

7Cfr. Can. Omnes 18, dist. 22

;Can. Loquitur i, c. xxiv., q. I.

*

Bouix De Episc., vol. i., p. 32. Re iff., 1. c., n. 68. M Ib., n. 6j11

Phillips, Kirchenr., vol. vii., p. 51. "Walter, p. 273. "Reiff., 1. c., n 66.

14

Phillips, Lehrb., p. 253.I5

Phillips, Kirchenr.. vol. vii., pp 44-47.



Of Bishops. 33 1

537. Q. Are bishops superior to priests ?

A. Affirmatively. This is de fide, being thus defined by

the Council of Trent:""

If any one s;i:h ih .t bishops are

not superior to priests, let him be anathema." It is true that

in the primitive ages of the Church bishops were not, in name

(quoad nomeii), distinguished from priests.17

This, however,

was not owing to a belief that priests were of the same dig

nity with bishops; for, as to the power or dignity (quoad

reni),a distinction was always recognized between the two,

even from the very beginning of the Church and in the time

of the apostles.18

538. Q. In what respect are bishops, jure divino, superior

to priests ?

A. i. In the potestas ordinis ;"

for bishops can adminis

ter certain sacraments v.g., orders and confirmation which

priests cannot validly administer.20

2. In \hepotestasjuris-

dictionis ; for Christ willed that dioceses, and, therefore,81

not only laics, but also priests and ecclesiastics in general,

should, as a rule, be governed by bishops as ordinary

Dastors.

ART. II.

Are Bishops the Successors of the Apostles ? From whom do

Bishops hold?

539- Q- 1 what sense are bishops the successors of the

apostles ?

A. I. It is certain that,"in some sense, bishops are the

successors of the apostles ;but in what sense ? Before an-

wSess. xxiii., can. vii.

;ib

, cap. iv.

"Ferraris, V. Episcopus, art. i., n. 28-32.

"

Dionysius, De Eccl. Hierarch., cap. iv., ap. Ferraris, 1. c., n. 30.

w Craiss., n. 861. w Bouix, 1. c., pp. 34-4*."

Th-. P- IO*9 Cone. Trid., sess. xxiii., cap. iv.



33 2 Of Bishops.

swering we premise : Three powers must be distinguished"

in the apostles: I, the potestas sacerdotii, or the power to

consecrate the body and blood of our Lord and forgive

sins;

&

2, the potestas ordinis cpiscopalis, or the plenitude of

the priesthood i.e., the power to ordain priests, confirm,

etc; 3, the potestas apostolatus i.e., the power to forgive

sins everywhere, appoint bishops all over the world, etc.;

in a word, the power to exercise, subordinately to Peter

jurisdiction without any limit as to place, persons, or mat

ters (jurisdictio universails}. These three powers were

given the apostles by Christ himself. II. Having premised

this, we reply : i . Bishops are, as a body, not as individuals,

the successors of the apostles ;in other words, the collegium

fpiscoporum succeeded the collegium apostolomm Hence,

with the exception of the Roman Pontiff and perhaps the

Bishop of Jerusalem, no individual bishop can claim to be

the successor of the apostles in the sense that the see occu

pied by him had one of the apostles for its firstbishop." It

cannot be said, therefore, that this or that bishop is the suc

cessor, v.g. tof Andrew or John. 2. Bishops are the suc

cessors of theapostles,

as to thepotestas ordinis?* For

bishops have, by virtue of their consecration, the same

character episcopates with the apostles, and hence the same

power of order. 3. Bishops, moreover, are the successors

of the apostles, quoad potestatem jurisdictionis, though not

quoad aequalitatem, but only quoad similitudinem jurisdic

tionis. We say, only quoad similitudinem jurisdictionis, for

the jurisdiction of the apostles, as we have shown, was universal ; as such it was extraordinary, personal, and there

fore lapsed with the apostles. The jurisdiction of bishops,

**Suarez, De Fide, part i., disp. x., sect, i, 2.

81Cfr. Bouix, 1. c., pp. 46, 47.

MSoglia. vol. i., p. 265.

"

Phillips. Kirchenr., vol. i., pp. 176, 177.*Bouix, 1. c., p. 48.

MIb., p. 53 ; cfr. Soglia, I.e., p. 266.

"

Phillips, 1. c., pp. 173, 174.

* Reiff.,

1. c,n. 76 ;

cfr. Bouix, I.e., p. 53.



Of Bishops. 333

on the other hand, is particular ; what the apostles could do

all the world over bishops can do only in their respective

dioceses.31

Hence, the authority of bishops, as we nave

said, is similar, but not equal, to that of the apostles.

540. Q. Do bishops receive jurisdiction32

immediately

from God or from the Pope ?

A. There are two opinions.33

The first holds that the

jurisdictionitself of bishops is communicated to them

directly by God, and that in their consecration;but that

the exercise of jurisdiction depends upon the authority of

the Roman Pontiff. Hence, according to this opinion, the

entire jurisdictio episcopalis is conferred upon bishops imme

diately by God;

"

the assigning of territory and subjects

for the exercise of jurisdiction belongs to the Pope.35

The

second affirms that bishops receive jurisdiction itself, as well

as the right to exercise it, immediately or directly from the

Pope, and that by their appointment or preconization.3

Observations. I. This question is not one of mere words,

but of very practical bearing. For, if the second opinion

be admitted, it follows that the jurisdiction of bishops may

be validly (though not licitly) restricted, or even entirely

withdrawn, by the Pope without a causa justa ;"

while, ac

cording to the first, such action of the Pope would be in

valid as well as illicit. 2. It does not, however, follow from

the second opinion that bishops are but vicars of the Pope ;

for it involves no repugnance to say Christ willed that

bishopsshould hold

directly

of the

Pope,

and at the same

81

Phillips, 1. c., pp. 174, 189.

w We say, jurisdiction ;for it is certain that bishops receive the potestas

ordinis directly from God, and that in their consecration. (Salz., lib. ii.,

P I34-)

33 We speak nere of jurisdiction as vested in bishops individually, pre

scinding from the question as to how jurisdiction is conferred upon bishops

as a body. (Craiss., n. 868.)M

Cfr. supra, n. 242.

35

Bouix, 1. c., pp. 55, 56."

Cfr. Salzano, lib. ii., pp. 134-13?"

Bouix, 1. c., pp. 60, 61.



334 Of Bishops.

time that the Pope should ordinarily appoint bishops not

merely as vicars ad nutum revocabiles?* but as pastors whoshould govern their dioceses proprio nomine and be irre

movable except for cause. 3. Our Lord, in fact, willed

that, as a general rule, dioceses should be committed to

bishops to be governed by them as ordinary pastors. Wesay, as a general rule ; for, in

extraordinarycases i.e., ex

ceptionally and for just cause the Pope may entrust the

government of this or that diocese to a priest, vicar-apos

tolic, or chapter ;

40

but he cannot simultaneously depose all

the bishops of the world, and rule all the dioceses of Chris

tendom by vicars or delegates.41

541. Q. Have bishops immediate or but mediate jurisdic

tionover the members of their dioceses ?

A. Some writers erroneously assert that parish priests,

not bishops, have, jure divino, the direct charge or care of

the faithful;that bishops, in consequence, are merely to see

that parish priests fulfil their parochial duties, and, if need

be, to remedy the negligence ofpastors." That this is false

appears, i, from the fact that parish priests are of ecclesiasti

cal institution only, did not exist prior to the fourth century,and therefore have not, jure divino, the immediate care of

souls. Bishops alone, in the first ages of the Church, either

personally or through others, exercised the cura animarum.

2. Again, it is admitted that a bishop may, even without the

consent of the pastor, either personally or through others,

perform parochial functions v.g., preach,43

baptize, hear

confessions, celebrate marriages, etc., in every church and

parish of his diocese.3. Nay, he may order, even against

the wish of the parish priest, extraordinary exercises to be

held in a parish, such as retreats, missions, and the like.44

Bouix, 1. c., pp. 76, 77. Ib.;

cfr. Cone. Trid., sess. xxiii., cap. Ir.

Ib 1 c., p. 82.41

Ib.,p. 109; Craiss.,

n. 880.

Cra-V--.. n. 873."

Ib.**

Ib., n. 874-



Of Bishops. 335

Now, all this necessarily supposes that he has immediate

jurisdiction throughout his diocese. What has been said

applies,a fortiori, to the United States. As a rule, two

bishops cannot be placed over the same diocese. We say,

as a ride ; the exceptions are: I. Where the faithful are of

different rites or have different languages.45 Where the

faithful are merely of different nationalities, the bishop

should appoint a special vicar-general or secretary for those

of a different nationality. 2. Where a coadjutor is given to

a bishop who is sick or otherwise disabled.

542. Q. What constitutes the essence of the episcopate?

A. i. It is of faith that the sacerdotium pertains to the

essence of the episcopal office.46 No one but a priest can be

a bishop. Hence, no layman, or even deacon, elected as

bishop, was ever regarded as a true bishop except after

being ordained a priest.2. Not only the sacerdotium, but

the plenitude sacerdotii, is essential. For bishops, as we have

seen, are, jure divino, superior to priests, potestate ordinis.

The sacerdotium of bishops, therefore, is fuller and more per

fect than the sacerdotium ofpriests,

and is

properly

termed

the fulness or complement of the priesthood (plenitude

sacerdotii).* 3. The plenitude sacerdotii essential to the epis

copate is the plenitude sacerdotii not merely as directed to

the exercise of the potestas ordinis" but as ordered to the

exercise of the potestas jurisdictions or the government of

the Church. 4. Hence, the episcopal dignity is correctly

denned:

The plenitude of the priesthood, as instituted byChrist for the government of the Church.

49 The above re

marks will also explain the definition of a bishop given

by us.00

"

Craiss., n. 878, 879.48

Bouix, I. c., p. 8q.

47Cfr. Cone. PI. Bait. II., n. 82.

*"

Bouix, 1. c., pp. 89, go,

4

Ib.,p. 91. Supra, n. 534.



336 Of Bishops.

SECTION II.

Of the Rights and Duties of Bishops in Particular.

543. Some of these rights and duties emanate from the

potestas ordinis, and are divided into jura ordinis communia

v.g., the administration of penance, the care of souls, and

into jura ordinis reservata or propria v.g., the conferring of

orders; others from the potestas jurisdictions v.g., the

legislative, judicial, and executive authority.51 We pass to

the several duties.

ART. I.

Duty of Residence De Obligations Residendi.

544. In order that bishops may be able to properly dis

charge their duties, they are, even though they be cardinals,

bound, at leastB2

jure ecclesiastico, to reside in their dioceses.

The residence to which they are obligated is therefore not

merely a material and otiose, but a formal and laborious,

residence" i.e., they are bound not only to live in their

dioceses, but also to discharge their duties therein." The

bishop fulfils the precept of residence by residing in any part

of his diocese ;

"

he is not obliged to live in his episcopal

city, though he should not remove from it his vicar-general

or tribunal."

545. How long and for what causes Bishops may absent

themselves from their dioceses. 1. Bishops may, for just

causes, and when it can be done without detriment to their

flocks, be absent from their dioceses three months every

61

Gerlach, Lehrb., pp. 312-320.M

Craiss., n. 882

68

Bouix, De Episc. . vol. ii., p. 5.

MCfr. Cone. Trid., sess. xxiii., cap. i., d. R.

**Thus, the Council of Trent says that bishops are bound to personal resi

dence"

in sua erclesia -r/ ciiot-cesi"

(1. c.)*

Rouix, 1. c., pp. 5, 6.



Of Bishops. 337

year, either continuously orinterruptedly,"

and without

any permission whatever, whether from the Holy See or

the metropolitan.68 We said above, for just causes. Some

canonists&

consider the need of mental relaxation a suffi

cient cause for an absence of three months;others for but

one month. This absence should not occur during Advent

or Lent, or on Christmas, Easter, Pentecost, and CorpusChristi.

60

II. At times bishops may, for certain causes,6

be

absent more than three months in the year. Now, what are

these causes? I. Christian charity ^Christiana caritas] v.g.,

to convert heretics, establish peace"

among Christian rulers.

2. Urgent necessity (iirgcns ncccssitas) v.g. ,if a bishop is

persecuted or obliged by reason of ill health to change cli

mate." 3. Obedience due others (pbedientia dcbitd] v.g., if

a bishop is called away by his lawfulsuperior," v.g., by the

Pope. 4. The evident utility (evident utilitas) of the Church

or the commonwealth v.g., the attending general or pro

vincial councils, or even civil diets,86

such as Parliament,

Congress, etc. The Pope s permission in writing is, as a

rule, requisite in all. these cases." III. They may, however,

without the express permission of the Holy See, be absent

nore than three months in the year for the following causes :

I. In order to pay their prescribed visit to the Apostolic

See (ad visitanda sacra limina). If their diocese is in Italy,

they may be absent four months;

if out of Italy, seven

months. 2. To be present at oecumenical or provincial

councils. 3. To assist at the conclave" (in case they are

cardinals). We said above, without the express permission;

for it is evident that the implicit permission is contained in

*"

Cone. Tnd., sess. xxiii., cap. i., d. R.**

Craiss., n. 887.

**

Ferraris, V. Episcopus, art. iii., n. 29.*Bouix, I. c., p. 8

;cfr. Cone. Trid., 1. c

"

Cone. Trid., 1. c.

nSalzano, lib. H., pp. 147, 148.

MPhillips, Lehrb., pp. 155, 156, n. 18-23.

**

Ferraris, 1. c., a. &Ib., n. 7, 8.

"

Craiss., n. 800."

Jb.



Of Bishops.

the very cause of the absence. These three cases may alsobe said to be included in the debita obcdicntia."

546. Q. Is a bishop excused from the duty of residenceon account of the danger of

contracting a contagious disease ?

A. He is not, even though he has a coadjutor. Althoughhe cannot leave his diocese during a pestilence or other

contagious disease (tempore pestis}?* yet he may remain in

those parts of the diocese which are safer and less exposedto the

contagion.70

547- Q. Within what time are newly-appointed bishopsbound to proceed to and take up their residence in theirdiocese ?

A. Those who are at the Roman court must do sowith-in a month from the day of their promotion ;

"

those wholive in

Italy, but out ofRome," within two months; others,

finally, who dwell out ofItaly, within four months."

548. Q. What penalties are incurred by bishops who violate the law of residence ?

A. Besides committing a mortal sin, they forfeit thefruits of their benefice

74

(with us, their income as bishops*>.,

theirsalary) in proportion to the time of their ab

sence;76

hence, they cannot retain such income orsalary,

but are bound, or in their default their ecclesiastical supe-rior (i.e., the metropolitan

76

)for them, to apply them

(i.e.,

fruits, salary) to the fabric of the churches or to the poor ofthe place />.,

of the diocese.77

This penalty is latae senten-

But if a bishop is unlawfully absent more than a year,the metropolitan must denounce him to the Roman Pontiff

"

Ferraris, 1. c., n. 7, 8. 9 ;cfr. Salzano, 1. c., p. 148.-

Ferraris, 1 c., art. iii., n. 12, 13. Bouix, DC Episc., vol. ii, pp. 16, 17.Ib., pp. 17, 18. Cfr Craiss.. n. 893. Cfr. Ferraris, I. c., n r3.

Izano, I. c., p. 149. Phillips, Lehrb ., p. 156. Ib.

Cone. Trid., sess. xxiii., cap. i., d. Ref.; cfr. ib., sess. vi., cap. i., d. Ref.

**

Salzano 1. c., p. 149.



Of Bishops. 339

either by letter or messenger,79

within the space of three

months, so that the Pope may proceed against the said non

resident prelate, and even depose him.5& 1

If the metropolitanhimself be thus absent, he must be denounced by the oldest

resident suffragan bishop. The precept of residence is un

doubtedly also obligatory on the bishops of the United

States.81

549. Q. Can bishops in the United States absent them

selves from their dioceses more than three months in the

year with the permission merely of the metropolitan, or, in

his absence, of the oldest resident suffragan bishop, but

without that of the Pope ?

A.

Theycannot. The Council of

Trent,

52

it is

true,en-

icted that the permission of the Pope or metropolitan was

required ; but herein the council was amended by PopeUrban VIII.,

83

who decreed that the Roman Pontiffs alone

could give the requisite permission.84

Father Konings/

however, maintains the contrary ;the distinguished moralist

quotes, in favor of his opinion, decree 91 of the Second

Plenary Council of Baltimore, which simply contains orgives the Tridentine decree on residence, without the

emendation of Urban VIII.

ART. II.

Duty of Visiting the Diocese("De Episcopali Dioecesis Visita-

tione."}

550. Definition and Object of Episcopal Visitations. A

bishop, in order to be able to properly govern his diocese,

"

Phillips, 1. c.&

Ferraris, V. Episcopus, art iii., n. 35, 36"

Cone. PI. Bait. II., n. 191 ;cfr. Cone. PI. Bait. I., n. 5.

"*

Sess. xxiii., cap i., d. R.

&

Cpnst. Simla Syn , 1634 ;cfr. Craiss., n. 889.

81

Bouix, 1. c, p. 1 6.

& 5TheoL Mor, n. 1134 (4 )



340 Of Bishops.

and report correctly to the Holy See80

when he pays his

visit ad sacra limina, should be well informed of the state of

his diocese. Now, he can best inform himself on this head

by travelling over, his diocese, and thus personally inspecting

the condition of its various churches (visitatio cpiscopalis).

In the East, bishops from the earliest times deputed priests

(visitatorcs] to make the visitation;while in the West bi

shops were already, in the sixth century, obligated to per

sonally traverse or visit their dioceses. These visitations,

which had, to some extent,87

fallen into desuetude, were re

established by the Council of Trent,88

and made obligatory

on bishops and others having the right to make visitations.

The object of visitations is chiefly to maintain sound doc

trine and preservegood

morals, correct abuses, etc. .

551. Q. Who have the right to make visitations?

A. All ecclesiastical prelates who have jurisdictio ordi-

naria over persons/ The vicar-capitular, sede vacante, also

has this right.90 The vicar-general, however, has no such

right," except when specially commissioned to that effect by

the bishop. Bishops are obligated to visit their dioceses

personally," unless they are lawfully hindered from doingso v.g., by sickness. How often is a bishop bound to visit

his diocese? A bishop not only can, but is obligated, either

personally or through others, whether priests or deacons, to

visit once every year, or, if his diocese be very large, once

every two years, his entire diocese and its churches.93

552. Q. Are bishops in the United States bound to visit

their dioceses? How often?

A. i. They are :

"

Meminerint episcopi se dioeceses suas

visitare districte teneri, non solum ut confirmations sacra-

rnentum administrent, verum etiam ut gregem sibi creditum

"

Phillips, Lehrb., p. 255, 135."

Ib., pp. 256, 257.

*Sess. xxiv., cap. iii., d. Ref.

**

Ferraris, V. Visitare, n. I, 2

*Ib., n. 9.

*

Ib., n. 19.M

Soglia, vol. ii., p. 16.

*Ferraris, 1. c., 18



Of Bishops. 34 i

bene cognoscant."

942. They are bound, according to the

Third Plenary Council of Baltimore" to visit their whole dio

cese at least once every three years. Where the common law

of the Church obtains on this point that is, the c. 3, C.

Trid., sess. xxiv. bishops are bound to visit their entire

diocese at least once GyLg_ui&jiazs^

553- Q- What persons and places are, in general, visit

able by the bishop ?

A. Visitations are of two kinds, personal and local. The

first (yisitatio personalis] is an examination into the conduct

of persons, etc.;the second (yisitatio realis or localis], into

the condition of churches, into the administration of church

property,

etc.97

Having- premised this, we answer : I. The

following persons are subject to personal visitations : all the

faithful, but especially the entire secular clergy of the dio

cese;

9Salso regulars, in matters pertaining to the care of

souls. Hence, regulars who have charge of congregations

may be corrected by the bishop, if they neglect any of their

parochial duties. II. The following places are, as a rule,

subject to localvisitations : i . All church edifices within the

diocese.99

2. All other ecclesiastical institutions v.g., hospi

tals, asylums, protectories.100

3.As to exempt places v.g.,

monasteries where the monastic discipline is transgressed

the bishop can only urge the regular superior to correct

such abuses and cause the rules of the institute to be ob

served ;

""

and if,within six months, the regular superior

fails to visit and correct his delinquent subjects, the bishop

can do so, if the monastery is snh commenda 4. Regulars liv

ing permanently out of their monasteries are visitable by the

bishop.103

5. Convents of non-exempt nuns are in every re-

" Cone. PI. Bait. II., n. 86." C. PL Bait. III., n. 18.

96Bouhc, 1. c., p. 25 ;

cfr. Craiss., n. 900, 901.97

Soglia, 1. c., p. 17.

>*

Ib.; cfr. Salzano, lib. ii., p. 149.

WPhillips, 1. c., p. 257.

100

Soglia, I. c, pp. 17, 18.

"

Phillips, 1. c., pp 257, 258.

HJ Cone. Trid., sess. xxi., cap. viii., d. R.""

Craiss., n 903.



342 Qf Bishops.

spect subjectto the

episcopal visitation;

I04

this applies toall female religious communities in the United States.

554- Q- What are the various things to be inspected or

enquired into during the episcopal visitation ?

A. i. Ecclesiastical places (loca)v.g., church edifices;

2, ecclesiastical things (res)v.g., tabernacles, baptismal

fonts, missals, vestments, and the like, in churches; 3, the

official conduct of clergymen in charge of congregations.The bishop should, therefore, see whether pastors and assis

tants properly discharge their functions (munerd) as regardsthe administration of the sacraments, of church

property,and the like; 4, the private conduct or the morals of the"

; clergy andlaity (pcrsonac)*

555. Q. Is an appeal admissible against the acts and de

crees of the bishop on visitation ? What is to be done after

the visitation is finished ?

A. i. The episcopal visitation should be a paternal ex

amination into the state of parishes and other ecclesiastical

institutions of the diocese;

I06

hence, he should dispense with

formal trials and judicial penalties. But, it he proceeds

judicially, or inflicts regular penalties, as dismissal from

parish,107 an appeal lies, even in suspensive; otherwise,

only in devolutivo 2. After the visitation, an authentic ac

count of it should be drawn up,108

to enable the bishop, in his

visitatio sacrorum liminum, to give the Pope an accurate re

port of the state of the diocese.110

3. The bishop-, cannot

receive anything for the visitation, save food orhospitality

1 "

(procuratio, victualing ; and in

places

where it is the custom

*"

Bouix, 1. c., p. 31.106

Phillips, Lehrb., p. 258 ;cfr. Salzano, I. c.,p. 149.

108

Phillips. 1 c. 1OTBouix, de Episc., t. 2. p. 35.

I08

Supra, n. 447.109

Craiss., n. 914."

C. PI. Bait. III., n. 18; Phillips, 1. c., p. 255.11 Or its equivalent in money, where those who are visited prefer giving

money rather than hospitality. (Soglia, 1. c., p. 9; cfr Cone. Trid., ses*.

ir., cap. iii., d. R.)



Of Bishops. 343

that nothing whatever be received by him, such custom

should be observed. (See C. PL Bait III., n.18.)

ART. III.

Of the Obligation Incumbent on Bishops to Visit the Holy See.

556. The duty resting- on bishops to make the visitatio

liminum consists chiefly,

1 "

i. inthe visit itself, or journey to

the Holy See; 2, in their submitting to the Pope an accu

rate statement of the condition of their dioceses (rclatio status

Ecclesiae}. By the limina apostolorum we mean the place

where the Pope resides.n What persons are obliged to

make the visit ad limina ? It is certain that, at the present

dav, patriarchs, primates, archbishops, and bishops, even

though they be cardinals,1 "

are bound, sub gravi, to makethe visitatio sacrorum liminum at stated times. The bish

ops of the United States are obliged to make this visitatio

every ten years, as was seen. These ten years must, in all

cases, be computed from the day on which the Const. Ro-

manus Pontifex of Sixtus V. was published, namely, from

December 20, 1585. Again, the visitation need be made

but once within every given space of ten years from Decem

ber 20, 1585. For the principal object of the visitation is to

make a full report to the Holy See once every ten years of

the state of the diocese. Consequently once this decennial

report has been made during the respective decennial term,

v.g., during the term beginning with December 20, 1885,

and ending with December 20, 1895, it need not be made

over again during the same decennary.1 "

ART. IV.

Duties of Bishops in regard to the Management of Ecclesiastical

Seminaries Of Seminaries in thi United States.

557. The supervision of seminaries is one of the chief

duties of

bishops.

Thehistory

of

episcopalseminaries is

divided chiefly into two periods : one prior, the other sub-

nsFerraris, V. Limina Apostolorum, n. 9.

mIb., n. 29.

mIb., n. 5, 30.

116Inst. S. C. de Prop. Fide, June i. 1877: Cone. PI. Bait. III., n. 13. 17.



344 Of Bishops.

sequent, to the Council of Trent."8

I. Episcopal Seminaries

before the Council of Trent. Seminariesi.e., houses set

apart for the education of youths wishing to embrace the

ecclesiastical state are traced by some canonists119

to the

very beginning of the Church; by others to the Council of

Nice (A.D. 325) ;and by several to St. Augustine, who, ac

cording to Phillips,12 &

had set apart a place in his episcopal

residence, where youths were brought up for the priest

hood. That seminaries existed already in the sixth century

is indisputable.121

Thus, the Second Council of Toledo,&

in

Spain, ordained that boys dedicated by their parents to th<

service of the Church should be brought up under the

tuition of a director, in a house belonging to the cathedral,

and under the

eyeor

supervisionof the

bishop.

1 "

Nay,it is

certain that, in the sixth century, youths destined for the

sacred ministry were educated for the priesthood not only

in episcopal colleges or seminaries, but in every parish

priest s house. This was the custom throughout almost the

entire Latin Church.124

Episcopal seminaries, which had,

since the eighth century, come to be superseded by univer

sities,

125

were re-established and placed on a more solid foot

ing by the Council of Trent. II. Seminaries after the Coun

cil of Trent. By seminaries we mean, at present, schools or

colleges126

where youths destined for the priesthood are

maintained, educated religiously, and trained in ecclesiasti

cal discipline.1 "

118Phillips, K. R

, vol. vii., p. 90; cfr. our Notes, n. 148-155.

119

Salzano, lib. iii., p. 186. "

L. c., p. 95.

131

Craiss., n. 924 ;cfr. Devoti, lib. ii., tit. xi., n. i, note 3.

m Cone. Tolet. II., AD. 531 ;cfr. Cone. Tolet. IV., A.D. 633 ;

cfr. Thomas-

sinus, Vetus et Nova Ecclesiae Disciplina, part i.. lib. iii., cap. v.; part ii., lib.

i., cap. cii. Lucae, 1728.

IS3

Phillips, 1. c., pp. 95, 96. The words of the Council are : Debt-ant[i.e.,

the boys] erudiri in domo Eccl,:siae, sub episcopali praesentia a pratposito. (Cfr.

Craiss.. 1 c.)m

Salzano, 1. c., p. 186;

cfr. Cone. Vasense II., A.D 529.

"Bouix.l c., p.68. IM Ib. I37 Cone. Trld.. sess. xxiii, cap xviii

,d. Re-



Of Bishops.

558. Q. What are the principal enactments of the Coun

cil of Trent in regard to seminaries ?

A. i. A bishop may have several seminaries; but he is

bound to have at least one, unless the poverty of the diocese

makes it impossible. 2. A common seminary should be

established by the provincial council for those dioceses

which, on account of poverty, cannot have their own. 3.

Those only should be received into seminaries whose char

acter and inclination afford a hope that they will alwaysserve in the ecclesiastical ministry. Hence, colleges where

ecclesiastical students are educated promiscuously with

secular students are not seminaries in the Tridentine sense

of the term. 4. Not only students of theology, but also ol

classics, should be admitted. 5. Youths to be received

should be at least twelve years old and should at once wear

the clerical dress.1 &

559. Management of Seminaries. Three committees are

to be appointed : one for the spiritual, two for the temporal

administration.1 9

i. The committee on the spiritual direc

tion of the

seminary

consists of two canons of the cathedral

chapter, chosen by the bishop. The bishop is obligedI3I>

to

hear the advice of this committee or commission, in regard

to the following matters chiefly : The laying down of the

general rules for the seminary ;the admission of alumni

;

the choice or selection of the books to be used;the punish

ment of delinquents ;the appointment and removal of pro

fessors, confessors, and the like.

131

2. The first committeeon temporal management of the seminary is composed of

four members namely, of two canons, one of whom is

chosen by the bishop, the other by the chapter ;

l32

and of

two clergymen of the city, one of whom is selected by the

""

Cone. Trid., 1. c.;

cfr. Bouix, 1. c., pp. 69, 70, 71."

Bouix, De Capitulis, p. 424 Paris, 1862."

Craiss., n. 929."

Bouix, 1. c., pp. 430, 431.I: 2

Ib ., p. 433 seq.



346 Of Bishops.

bishop, the other by the clergy of the who*e diocese. The

bishop is bound to hear the advice of this committee, chiefly

on these matters :

3

The contributions or assessments to be

made for the support of the seminary ;the daily or current

expenses of the seminary ;the administration of the entire

property and income of the seminary ,in a word, the whole

temporal management.134

The second committee on temporal management is also made up of four members, two of

whom are selected by the chapter and two by the clergy of

the city. It is a sort of auditing committee, and should be

present when the administrators of the seminary hand in

their annual financial statement to thebishop."

6

Observa

tion. i. The bishop is obliged, even for the validity of his

acts,

to hear the advice of these committees ; but he is not

bound to follow it. 2. The members of the first and second

committees are irremovable except for cause.13e

560. Q. Can bishops place religious communities in

charge of seminaries ?

A. They can, under certain conditions. We say, under

certain conditions;&

for religious congregations do not, as a

rule, undertake the direction of seminaries, save on condition

I3 &

that their superior-general shall have the right to

appoint the rector and the professors ;that they shall be

allowed to manage the seminary without any of the above

committees; finally, that the government of the seminary

cannot be taken from them except for cause. Now, all

these conditions are evidently contrarym

to the above-men

tioned enactments of the Council of Trent. As bishops

have no power to derogate from the jus commune i.e., the

Tridentine decrees it follows that seminaries can be given

133

Bouix, p. 438 ; cfr. ib., De Episc., vol. ii., pp. 71. 72.

134Craiss , n. 930; cfr. Soglia, vol. ii., pp. 282-284.

*" Tone. Trid , sess. xxiii., cap. xviii., d. Ref.m

Craiss., n. 933, 935.137

Ib., n. 935.*Bouix, De Capitulis, p. 443 seq.

**Bouix, DC- Episc.. vol. ii., p. 73.



Of Bishops.. -4-

over to religious congregations only by authority of the

Holy See. When, therefore, a bishop wishes to entrust the

direction of a seminary to a religious body,1 &

he should

enter into an agreement with the regular prelate of the

order or the superior of the congregation ;the articles of

agreement should then be sent to the 5. Congr. Concilii (with

us, to the Propaganda); and, when approved by this tri

bunal, they become permanent law, from which neither the

bishop nor his successors can recede.141

|3 F 561. Q. What are the chief enactments of the Third

Plenary Council of Baltimore respecting seminaries in the

United States?

A. We premise : With us there are two kinds of semina

ries namely, major and minor. In the former philosophy

and theology, in the latter classics are taught.1 "

As a mat

ter of fact, but few preparatory or small seminaries exist, the

classics being frequently learned by youths studying for the

priesthood, in colleges or institutions, which, though under

the direct control of bishops and priests, servechiefly for

the education of secular students. Again, prior to the Third

Plenary Council of Baltimore there were no committees ; the

bishop, rector, or procurator conducted the temporal as well

as the spiritual administration.

562. We now answer: i. Every diocese should, ii possi

ble, have its own major and minor seminarv set apart exclu

sively for the education of ecclesiastical students. Where

this is impossible, one higher and one preparatory seminarv

should be established in each province.1 3

However, the Third

Plenary Council allows young men studying for the priest

hood to study their classics at secular colleges, wherever,

owing to want of means, small or preparatory seminaries,

which are exclusively for ecclesiastical students, cannot as

yet be erected.144

2. In the preparatory seminaries (where

they exist),

the course of studies shall not be less than six

110Cfr. Cone. PI. Balr. II., n. 408.

141 Crai*s.. n. 935.

142 C. PI, Bait. II., n. 175, 176, 177.143

C. PI. Bait. III., n. 139 155.

144 Cone. PI. Bait. III., n. 153.



543 Of Bishops.

years, and comprise the vernacular (English, and in some

instances, also the German, Polish, French, and Italian lan

guages);146

in the major seminaries, the course of studies

shall also be six years, two for philosophy, and four for the

ology.146

3. For each seminary, major or minor, diocesan or

provincial, two committees must be appointed; each com

mittee to consist of at least one priest. In the case of dio

cesan seminaries, the members of these committees are

appointed by the bishop with the advice of the diocesan

consultors ; in the case of provincial seminaries, by the

bishops of the province, without the advice of the con-

suitors. One ^>f these committees has the right and duty

of advising the bishop in all that concerns the spiritual

governmentof the

seminary,as

explainedabove

(n. 559);the

other, in all that regards the temporal management, as out

lined above, n. 559. We said above, n. 559, that the advice

of the committee on temporal management is necessary in

regard to the contributions or assessments to be made for

the support of the seminary. This needs explanation. The

bishop is bound to take the advice of this committee

in imposing the tax, and that both as regards the gross

amount to be raised, and the rate at which each church is to

be assessed. But once he has thus fixed the amount and the

rate, he can collect it without the advice of the deputies.14

Bishops, with us, are indeed obliged to take the advice of

these committees under pain of having their acts annulled;

but they are not bound to follow it. 4. Seminarians are

allowed to go home during the vacations. But while on

vacation they are placed under the supervision of their par

ish priest,to whom they must present themselves, at the

beginning of the vacation, and by whom they may be em

ployed in teaching catechism, serving at the altar, etc. At

the end of the vacation, the parish priest is obliged to inform

the bishop, or the superior of the seminary, by sealed letter,

of the conduct, etc., of the seminarian. (C. PI. Bait. III.,n. 177.)

us Cone. IM. Bait. III., n. 147.146 Bouix. De Cap., p. 439.



Of Bishops. 349

ART. V.

Rights and Duties of Bis/tops as regards the holding of Diocesan

Synods (De Officio et Potestate Episcopi quoad Synodum

Dioeccsanam).

563. Definition. Those meeting s 159 are called diocesan

synods (synodus dioecesand) where the bishop assembles the

clergy of his diocese in order to treat of matters that relate

to the pastoral charge or the care of souls.154

The word

council is at present applicable only to oecumenical, national,

and provincial synods, but not to diocesan assemblies.161

The enactments of diocesan synods are named statutes (sta-

tutd), decrees (decretd), constitutions(constitutiones). The

term canons is at present applied to those decrees only

which are binding on the entire Church v.g., those of

oecumenical councils.158

564. Q. How often are diocesan synods to be held in the

United States ?

A. ~i. Onceevery year,

1 "

wherever this is feasible. 2.

"

Quoad si, ob locorum distantiam aliaque peculiaria rerum

adjuncta, magno foret incommodo synodum quotahms cele-

brare, curent episcopi, ut saltern post habitum ac a Sancta Sede

recognitui/i concilium provincial sive plenarium, quam levissima

mterposita mora, synodum convoccnt dioeccsanam, in quo sta-

tuta provincialia seu plenaria omnibus promulgentur, atque

executioni dentur."

Again, we ask, Is the Tridentine decree enjoining the annual celebration of diocesan synods

163See our article on Dioc. Syn. in Brownson s Quarterly Review, July, 1875,

p. 314 seq. M

Craiss., n. 80;

cfr. our Notes, n. 37.

"Bouix, 1. c., pp. 348, 349.156

Bened. XIV., De Syn., lib. i., cap.iii.,n. 3.

157

Bishops neglecting to hold synods annually incur suspensio abofficio^

which penalty is ferendae, not latae sententiae (Bened. XIV., 1. c., cap. vi.,

n. 5 ; cfr. Cone. Trid., sess xxiv., c. ii., d. R.)168

Cone. PI. Bait. II.. n. 67 ;cfr. ib., n. 63.



3so Of Bishops.

obligatory, sub gravi, even at the present day ? It is, wher

ever the holding1

of synods is practicable, and especially

where, as in the United States, no hindrances of a political

nature stand in the way. Some jânonists^ however, hold

the negatiyejâsserting^tiiat synods have almost everywhere

fallen into desuetude.109

Again, what persons have~power to

convene diocesan

synods?

i. Bishops, as soon as they are

confirmed, and even before the}^ are consecrated;

16 &

they

may depute vicars-general or other persons to convoke and

preside over synods in their stead.1 & 1

2. Vicars- capitular,

sede vacante, and in the United States, by analogy, adminis

trators of dioceses.

565. Q. What persons in the United States are obliged

to attend diocesan synods?

A. i."

Praeter sacerdotes" 3

curam animarum haben-

tes,163

sive sint saeculares sive regulares, omnes etiam in

dignitatibus quibuscunque constituti, rectores etiam semi-

nariorum, hujusmodi synodis interesse debent." 2. Also all

superiors of monasteries situate in the diocese and not

governed by a general chapter.104

Observe, the bishop is

the sole law-giver in these assemblies, and therefore he

alone has a decisive vote ; the other members have but a

consultative voice.185

566. Officials of Synods. -There are two kinds of synodi-

cal officials :

""

I. The officiates synodi i.e., those who per

form certain functions in and during the synod itself. These

mCfr. Boui*, 1. c., pp. 351, 352.

16

Phillips, Kirchenr., vol. vii., p. 204.181

Ferraris, V. Synodus Dioec., n. 13."- Cone. PI. Bait. II., n. 66.

168

By virtue of universal custom only pastors, not their assistants, are

bound, as a rule, to attend. We say, as a rule ; for, if a general reformation

of the clergy is to be treated of, all ecclesiastics must attend. Cfr. Phillips,

Lehrb., p. 354.

164 C. Trid. sess. 24, c. 2. de Ref.; Bened. XIV., De Syn., 1. 3, c. i. n. 8.

IBSFerraris, 1. c., n. 42, 43.

166Gavantus, Praxis Exactissirna Syn. Dioec., pars, i., cap. xviii., n. i, 2

;

cap. xxx., n. 7 ; cap. xxxi., n. i. Venetiis. 1668.



Of Bishops. 35

are, at present, chiefly the notary, secretary, promoter, andmaster of ceremonies

; they are, as a rule, appointed in the

preliminary meetings (congregations praesynodales), usuallyheld some time prior to the day fixed for the synod. II.

The officiates clcri are those functionaries who are elected

indeed in the synod, but whose duties begin only at its end

and last till the next synod They are chiefly: i. Synodi-cal judges (judices synodales,jitdices in partibus, judices pro-

synodalesIC9

),to whom all cases of appeal from the decisions

of ordinaries are committed by the Holy See; they are

Papal delegates, and must not be confounded with our commissions of

investigation, where the latter still exist.169

2.

Synodical examiners (examinatores synodalcs), whose duty it

is to conduct the examinations for appointments to parishesin forma concursns. Where no synod is held, the bishop

may, with the consent of his chapter in the United States,with the advice of the consult ors (Cone. PI. Bait. III., n. 25)

appoint the synodical examiners out of synod,1 "

provided hehas previously obtained the permission of the Holy See.

173

3. The Third Plenary Council of Baltimore counselsbishopsto make use of the synodal examiners also for the examina

tion of the ordinandi, of those who are to be approved for

confessions, of the junior priests, and of the alumni whowish to be admitted into major seminaries.

Appeals against Statutes of Diocesan Synods. It is allowed

to appeal to the Holy See (according to Ferraris, not to the

metropolitan) againststatutes of

diocesan synods;

173

suchappeal, however, has only an effectum devolutivum, not sus-

pensivum, and does not, therefore, suspend the obligation of

complying with the statutes pending the appeal.174

167Gavant, 1. c.

, cap. xxx., n 7.

168Cfr. Cone. Tricl., sess. xxv., cap. x., d. R

; cfr. Phillips, Kirchenr., vol.

vi" P-

"69- 169Cfr. Instr. S. C. P. F., 1878.

10Cfr. Cone. Trid., sess. xxiv., cap. xviii., d. R. Salz.. lib. i.,

p. 46.I7i Cone. PI. Bait. III., n. 25."

Ferr. V. Svn., n. 44.& Leo XIII., Const. Romanos Pontifices, iSSi, Bened. XIV., De Syn., lib

xiii., cap. v,n 12. 13.



352 Of Bishops.

567. Theological Conferences. These serve to remedy, in a

measure, the rarer celebration of diocesan synods. Accord

ing-to the Third Plenary Council of Baltimore (n. 191, 192, 193),

i, these conferences (cottationes de rebustlteologicis) should be

held four times a year in cities, twice a year in rural dis

tricts; 2, all priests, whether secular or regular, having the

care of souls, should attend them; 3, the bishop lays down

the method to be observed, proposes the matters or ques

tions to be discussed, and the like.176

ART. VI.

Of the Legislative, Judicial, Executive, and Teaching Powtr

of Bishops.

568. I. Legislative Power. \. The bishop has power not

only to publish in his diocese Papal constitutions and the de

crees of oecumenical,177

national, and provincial councils, but

also, both in and out of synod,.to enact laws for his clergy and

people,176

provided, however, his regulations be not opposed

to the universal laws of the Church.17 &

Constitutions enact

ed by the bishop in synod are permanent (statuta pcrpetud],

though not immutable i.e., they do not cease to be of force

at the death of the bishop, though they may be changed by

the successor.180

Are statutes made by the bishop out cf

synod also perpetual ? The question is controverted.181

2.

The bishop, not the civil authority, can order public prayers

for the necessities of the Church, or because of other just

reasons; prohibit abuses that may have introduced them

selves in the administration of the sacraments, in the cele

bration of the Mass, and the like. He may, in general,

ordain whatever tends to suppress vice, preserve virtue, and

maintain true faith and ecclesiastical discipline. Can the

116 Leo XIII., Const. RomanesPontifices, Praecipuam,

1881.

117Gerlach, 1. c., p. 317, Our Notes, n. 82, 83.

179Bouix, De Episc., vol. ii., p 80. :8

Soglia. vr>l i.. p. 287.

161 Hened XIV De Svn . lib xiii . cap v. n i and lit) "

. c..:a. iv.. n. 3.



Of Bishops. 353

bishop make synodal statutes without the consent or advice

ol the chapter? We premise: i. By synodal statutes we

mean those which are at least promulgated in synod.18J

2.

We said chapter, because it is certain that neither the assent

nor the advice of the other priests is requisite.183 We now

answer: i. As a general rule, statutes

maybe issued in

synod witJiout the consent of the chapter; except, however,

(a) when this consent is expressly required by law v.g., in

the erection of a new parish ; (b)where custom favors such

consent.& 4

2. However, synodal constitutions are not valid if

made without the advice of the chapter.166

Though the bishop

is bound to take this advice, he need not follow it.186

3. So

faras concerns

theU. S.,

theThird Plenary Council of

Balti

more enacts: "Consilium consultorum exquiret episcopus

pro synodo dioecesnna indicenda etpublicanda."

187

Conse

quently synodal statutes, with us, are voidable, if made with

out the advice of the diocesan consultors.

569. II. Judicial Power. Suffice it to say here that all

causes belonging in any way whatever to the ecclesiastical

forum, even though they be causac beneficiales, matrimoniales t

or criminals, are to be taken cognizance of, in the first in

stance, by the ordinaries of places.1 8

III. Executive or Co-

active Power. The bishop, in his diocese, may enforce,

under penalties and censures v.g., even under pain of ex

communication, to be incurred ipso facto the laws enacted

by himself and those of the entire Church.189

IV. Teaching

Power. Bv virtue of his potestas magistcrii, the bishop is

teacher and doctor in his diocese;out of general councils,

however, he cannot define questions of faith or morals;fur

thermore, he cannot undertake to settle points freely dis-

1MCraiss., n. 949.

"3

Bouix, 1. c., p. 390.1M

Craiss., n. 950, 95$.

188

Ib., n. 952.Ifl6

Phillips, Lehrb., pp. 258, 259.

187Jonc. PI. Bait. III., n. 20.

""

Soglia, 1. c., p. 288;

cfr. Cone. Trid., sess. xxiv . c xx,d. R.

**Bouix, 1. c., p. 80.



354 Of Bishops,

puted among theologians.100

He can and should watch over

schools, colleges, seminaries, and the like, and see that no

thing is there taught contrary to faith, morals, and dis-

crpline."

1

ART. VII.

Of the Powers of Bishops to grant Dispensations.

570. A dispensation is the relaxation of a law in some

particular case where it would otherwise bind."

J

Dispen

sations can be granted by the proper superior only. Bishops

can dispense from all laws made by themselves or their pre

decessors, whether in or out of synod ;but not from enact

ments of popes or oecumenical councils, nor, in general, from

the common law of the Church."11 We say, in general ; for

bishops may dispense even from the jus communeI M

in the

following cases: I. Exjure idpermittentei.c., where the law

itself, whether as enacted by the Sovereign Pontiffs19

or

Oecumenical councils, either expressly, or at least tacitly196--

v.g., by saying posse dispensari gives bishops power to grant

dispensations. Thus, the Council of Trent 197

expressly per

mits bishops to dispense from the interstices to intervene

between the reception of the various orders, whether minor

or major ;also to grant dispensations from the publication

of the banns of matrimony.198

2. By virtue of legitimate cus

tom. Thus, bishops dispense from the precept of fast, the

observance ofholidays,

and the like. This custom, to be

awful, must be immemorial i.e., a hundred years old, and

not subversive of ecclesiastical discipline. 3. Ex pracsumpta

ft interprctativa Pontificis delegation? Thus, the Pope may

190Craiss., n. 954.

""

Ib-n 955-

"

Ib --n 957

103Ferraris, V. Dispensatio, n. 23.

194

Soglia. vol. i., p. 290.

198Bouix, 1. c., p. 92.

I98Ferraris, 1. c., n. 26.

197Sess. xxiii., c. xi.. d. R.

""

Ib., sess. xxiv., c. i.,d. Ref. Matr

199Ferraris, 1. c., n. 27.



Of Bishops. 355

reasonably be presumed to authorize bishops to grant dis

pensations in urgent cases which admit of no delay. Thus,

a bishop may, under certain conditions, relax an occult im

pediment annulling a marriage already publicly contracted.

Again, bishops, by virtue of the presumptive consent of the

Holy See, may dispense in matters of less importance and of

frequent occurrence.200

4. By virtue of special delegation i.e.,

of special faculties given to bishops by the Holy See*"

v.g.,

foe facilitates given to bishops in the United States, for five

or ten years, or only for a certain number of cases.208

5. In

cases where it is doubtful whether a dispensation is needed. In

cases of this kind bishops may either grant a dispensation for

the sake of greater safety (adcautelam},

or

simplydeclare

that no dispensation is required.203 We observe : r. Bishops,

in cases n. i, 2, 3, 5, can dispense from the jus commune (<?)

for

just reasons only, (U] and not universally i.e., not for an

entire diocese, city, or community, but only for individu

als.204

2. The power of dispensing in cases n. 1,2, 3, 5, as

vested in bishops, is a potestas ordinaria, and therefore, sede

vacantc, passesto the

chapter; for the same reason it

maybe delegated to others.

20

571. Can bishops, without having special faculties from

the Holy See, grant dispensations from the law of fast, of

abstinence from flesh-meat and white meats (ova etlacticinid),

and from the precept of abstaining from servile labor on fes

tivals of obligation ? i. They can grant these dispensations

to particular persons, and that by virtue of universal custom,sanctioned by the Holy See

;for it were morally impossible

to recur to Rome for a dispensation in every particular

case.2 & 8

2. Bishops cannot, however, dispense from the

M0Craiss., n. 966.

& 01

Phillips. Lehrb., p. 178; cfr. Gerlach, Lehrb., pp. 176, 293, 294.10

Cfr. our Notes, pp. 463-476.-03

Ferraris, I. c., n. 23.144

Soglia, 1. c., p. 290.5

Ferraris, I. c., n. 10

*"

Bouix, 1. c.. p. 96.



356 Of Bishops.

above laws in a general manner*

i.e., for a whole diocese,

city, or community except by virtue of special faculties

from Rome. 3. The bishops of the United States have facul

ties from the Holy See dispensandi super csu carniuni, ovoruin

et lacticiniorum tcmpore jijuniorum et Quadragesimae ; they

may consequently, and in reality do, dispense, in their"

Regulations for Lent,"

universallyi.e., for the whole diocese."

572. Are dispensations valid when conceded by a bishop

without sufficient cause ? A bishop can dispense validly,

without just or sufficient cause, I, from his own laws or

those of his inferiors; 2, also from the laws of his superiors,

when there is doubt either as to the existence or the suffi

ciency of a cause for dispensation ;

& 10

3, it is certain that if

he knowingly dispenses from the laws of his superiors T g.,

from impediments without sufficient cause, the dispensa

tion is always invalid?1

It is, however, very probable that

if a just cause really exists, the dispensation is valid, even

though the bishop or chancellor, when giving it, thought

there was no cause.212

For the validity of dispensations de

pends not upon the knowledge, but the existence, of suffi

cient causes. Dispensations granted without sufficient rea

sons are always unlawful ; and both the person asking for

and the one granting such dispensations commit sin. Hence,

the statutes of the various dioceses" 3

in the United States

usually prescribe that dispensations, especially from the

publication of the banns and from the impediments of

marriage, be asked in writing, and that canonical rea-

*"

Craiss., n. 973-9^0.M8

Fac., form. i.rn. 27.

2UJKenricL-, Mor. Tr. IV., pars ii., n. 48.

21

Craiss., n. 968.

1Ji:

Ib., n. 970.

aM The following passage of Rohlings seems noteworthy :

"

Inveniuntur in

terdum, qui episcopis petitionem oretenus aut in scriptis offerunt, quin ullam

prorsus dispensandi causam proponant. Scire deben, dispensationem ita for. t

ab epl-copo concessam omn.no nullain csie" (Medulla, p. 426).

*"

Cfr.Stat.

Dioec. Nov., pp. 10, 51;cfr. Srat Dioec.

Albanensis. 1869,

p. 15.



Of Bishops

sons bft assigned by thepetitioner."

4

It would seem that,

so far as the validity is concerned, dispensations may be

asked for orally, since they may valid ly be granted orally

by bishops.1

ART. VIII.

On the Power of Bishops in regard to various matters relative to

the Liturgy of the Church.

573- We shall here only touch on several points. I. It

is an error to attribute to bishops legislative power respect

ing the liturgy of the Church, independently of the Roman

Pontiff"

2 "

2. Thebishop,

if absent from his cathedral,

mayconsecrate the olea catechumenorum et infirmorum in some

other church.2 7 He may also, in case of necessity, bless the

holy oils with a less number of ministers than is prescribed

by the Pontifical, and, in the United States, also extra

diem coenae Domini We ask : Can the Blessed Sacra

ment be kept in public chapels without special permission

from the Holy See?i.

As a rule, the Blessed Sacramentcannot be kept outside of parochial churches, except by per

mission from the Holy See.19

2. From this rule are except-

ed the churches or chapels of regulars, and of nuns having

solemn vows and living in enclosure.220

3. By special indult

from the Holy See, Sisters of Charity and other religious

communities of women, though not solemnly professed, may

keep the Blessed Sacrament in their chapels ;

&

the key of

the tabernacle should be kept by the priest.

574. Can bishops de jure commum permit the temporary

celebration of Mass in private houses ? We say, temporary

""

Cone. PI. Bait. II., n. 332, 333, 385, 386.a "

Konings, n. 1628, q. 6.

516Cfr. Bouix, De Episc., vol. ii., p. 115.

3 "

Craiss., n. 982"

Facult.,form, i., n. 12

; ap. our Notes, p 464.*

w Bouix, 1. c., pp. 121, 122."*

Ib., p. 123.*"

Kenrick, tr. xvii.. n. 140, S. C. de P. F., i Aug. 1886.



358 Of Bishops.

celebration; for it is certain that they can no longer allow

priests to celebrate permanently in private houses. We now

answer : According to St. Liguori,""

it is commonly held

that they may still give such temporary permission. Bouix

il. c., p. 127) and Craisson (n. 3568), however, assert that this

opinion has no solid basis. In fact, according to two recent

decisions one given in 1847, the other in 1856) of the Holy

See, bishops, it would seem, cannot grant such temporary

permission, except si inagnae et urgentes adsmt causae, and even

then only per modum aclus transenntis What are the special

powers of our bishops respecting the place of celebrating

Mass ?"

Celebrandi sub dio et sub terra, in loco tamen decenti

. . . si aliter celebrari nonpossit."

This power, which

may,

in fact is usually, communicated topriests,",

was re

stricted by the Second Plenary Council of Baltimore;22

so

that, at present,"

nulli sacerdoti liceat Missam celebrare in

aedibus privatis,nisi in stationibus, et in iis aedibus quas or-

dinarius designaverit ;aut dum actu missionis excrcitiis, pro-

cul ab aliqua ecclesia, datoperam." Hence, priests cannot

make use of the above faculty of celebrating in quocunqnc loco

decenti in cities orplaces

where there are churches.227

Can our

bishops, for grave cause v.g., when, on account of the cold in

winter, it is difficult to say Mass in the church allow priests

to say Mass in their houses, even when the church is near

by ? Kenrick228

seems to imply that they may do so.

575. Can a bishop exercise pontifical functions in the d o-

cese of another bishop ? i. He cannot, save by the express

permission of the ordinary of the place.

229

2. Formerly mis

sionary bishops, or those placed under the Propaganda (v.g.,

the bishops of the United States), were forbidden to exercise

pontifical functions in any other but their own diocese, even

mLib. vi., n. 358 ;

cfr. Cone. Trid., sess. xxii., Deer, de observ. et evit. in

Celebr. Miss.2S3

Konings, n. 1328.*"

Fac., form, i,n. 23 ; ap. our Notes, p. 467.

225

Konings, n. 1329, quaer. 3.226

N. 362.& 27

Kenrick, 1. c. n. 87.

"

Ib.""

Cone. Trid., sess. ri., cap.v., d R-



Of Bishops. 359

with thepermission of the ordinary of the place. The rigor ot

this law was modified by Pope Pius VII.,"

1

so that, at present,

"quandorationabili causa, episcopi seu vicarii apostolici ad

alienas dioeceses vel vicariatus se conferunt, possint sibi in-

cicera communicare facultatem pontificaliaexercendi."

ART. IX.

Of the Rights and Duties of Bishops in regard to thj Sacrament

of Confirmation.

576. I. Minister of Confirmation. The bishop is the

minister ordinarius of confirmation. According to the com

mon opinion of theologians, it pertains to the essence

of this sacrament, I, that the forehead be anointed; 2, in

the form of a cross ; 3, by the hand of the bishop, not with

any instrument.333

The bishop is obliged, according to

some, even sub gravi, to use the thumb of his right hand in

anointing the forehead; yet confirmation, given with any

finger, whether of the right or left hand, is valid nay, licit

if the thumb ol the right hand cannot be used.234 A bishop

administering confirmation in the diocese of another bishop,

even though it be to his own subjects, without the permis

sion of the ordinary of the place, incurs suspensio a Pontifica-

libus ipso facto." He may, however, where it is customary

v.g., in the United States"6

confirm strangers in his own

diocese.237

By reason of universal custom, it is not at pre

sentobligatory, though advisable,

that the confirmator and

the person to be confirmed be fasting ;for it has become cus

tomary to give confirmation even in the afternoon.238

It

seems forbidden, at least sub levi, to administer confirmation

a30Decretum Innocentii X., 28 Mart., 1651.

M1Aug. 8, 1819.

""Cone. PI. Bait. II., n. 404.2is

Craiss., n. 987.

134

Kcnrick, tr. xvi., n. 2."*"

St. Liguori.lib. vi.,n. 171

""

Kenrick, 1. c., n. 6. 2S? Bouix, De Episc., vol. ii., pp. 212, 213138

St. Liguori, i. c.. n. 174.



360 Of Bishops.

outside the church, except for reasonable cause; it is certain,

however, that a bishop may give this sacrament in his do

mestic chapel. In the cathedral, it is usually administered

during the time of Pentecost;in the other churches of the

diocese, during the episcopal visitation.239 The bishop is en

tirely free to give it on non- festal days. We ask : What sin

does a bishop commit by neglecting to administer confirma

tion ? It is admitted by all that a bishop, except he is sick

or too old,240

commits a mortal sin by neglecting for a long

time v.g., for eight or ten years to traverse his diocese, or

at least its principal parts, in order to give confirmation. It

is no sin, however, for just reasons, to defer giving this

sacrament for three years or more.241

Does a bishop sin

mortally by refusing to confirm persons at the point of death

who ask for this sacrament? The question is disputed. It

is probable that he does not sin even venially.2 "

577. II. The Subject of Confirmation. I. All baptized

persons may validly receive this sacrament. 2. At present

however, it is not allowed in the Latin Church to confirm

children before the age of seven,243

except (a) for grave rea

sons v.g.,in

danger

of death;

244

(//)where it is customary,

;as in Spain. Insane persons may also be confirmed. The

fathers of Baltimore245

ordain that when confirmation is

given to many persons, tickets (schedulae confirmationis}

on which are written the Christian and family names, should

be given by the pastor to each person to be confirmed.

This ticket will answer the double purpose of suggesting

the Christian name to the bishop, and of recording it,to

gether with the family name, in the register ;

24

it will,

moreover, serve as a testimonial that the bearer is sufficient-

338Phillips, Lehrb., p. 542.

54

Kenrick, 1. c., n. ^.

*41Bouix, 1. c., p. 213.

242

Craiss., n. 991. 43

Walter, p. 538.

244Cfr. Cone. PI. Bait. II., n. 252.

245Ib.


347Cfr. Ceremonial for the United States, p. 486. Baltimore, 1865. Cfr

our Notes, n. 227.



Of Bishops. 361

ly prepared to receive this sacrament. Formerly a linen

or silken band, with a cross on it, was tied around the fore

head of the person confirmed, and worn in this manner one,

three, or seven days, according to custom."48

At present

the forehead is immediately wiped with cotton, no band

being used. This is the custom also of thiscountry."

9

578. III. Sponsors or Godfathers andGodmothers

(Patriniet Matrinae Confirmationis). i. According to St. Liguori

86

and others, the obligation of having a sponsor in confirma

tion binds subg>avi.

When it is impossible, however, to

procure sponsors, confirmation may be lawfully given with

out them. 2. Only one sponsor is allowed for each person.

5. The sponsor should be confirmed, 4, and be different

from the one in baptism,2 & 1

5, and of the same sex with the

person to be confirmed, 6. It is sufficient for the sponsor to

place the right hand on the shoulder of the person to be

confirmed, as is customary in the United States."5

The

fathers of Baltimore ordain :

"

Confirmati vero habebunt pa-

trinos singuli singulos, nee tamen foeminis mares nee mari-

bus foeminae patrini oflficium praestabunt. Quod si hoc

fieri omnino nequeat, saltern duo pro pueris patrini, et duae

pro puellismatrinae adhibeantur."

ART. X.

Rights and Duties of Bishops respecting Causes or Matters

of Heresy.

579. The proper judges in regard to the crime of heresy

are: i. The Supreme Pontiff, all over the world. 2. Bi

shops, in regard to all their subjects. 3. Those Papal dele

gates who are named inquisitors (inquisitores fidei} Lay-

2<B

St. Liguori, 1. c., n. 188. Kenrick, 1. c., n. 12.55

L. c., n. 185.

461

Bouix. 1. c , p. 215. Kenrick,1.

c., n. 10.

"

Cone. PI Bait. II., n. 253.2 "

Bouix, i. c., p. 216.



362 Of Bishops.

men are not competent judges in matters of heresy, even asto mere questions of fact.

255In a diocese where there exists

an inquisitor i.e., a judge deputed by the Holy See the

power to examine and punish heretics resides cumulatively

in him, and, at the same time, in thebishop.""

At present,

however, the tribunal of the Sacred Inquisition (Sanctum

Officiuiri) exists, perhaps, nowhere else except in Rome 2 *

Hence, bishops, almost everywhere, exclusively possess all

the authority which was ordinarily vested in inquisitors ot

the Holy See.968

(Supra, n. 500.)

580. Q. Can bishops absolve from heresy ?

A. I. We premise: i. Formal heresy, of which alone

we here speak, is either internal i.e., not manifested exter

nally by any word or action; or external i.e., outwardly

expressed, in a sufficient manner,2 8

by words or actions. 2.

External heresy is subdivided into (a) occult namely, that

which is externally manifested, but known to no one, or

only to a few v.g., five or six persons00

and which, more

over, is not yet brought before the judicial or external

forum; (b)

into public or notorious that, namely, which is

judicially

established261

(Jtaercsis notoria notorietate

juris,liaercsis notoria et ad forum judicial? deducta) or known to

nearly all persons, or at least to the greater portion of a

town, neighborhood, parish, college, or monastery283

(Jiaeresis

notoria notorietate facti, haercsis notoria ct ad forum judicial^

non deducta). 3. It is certain& R3

that all persons who are for

mal heretics, and outwardly show their heresy by any

grievously sinful act,

284

incur, ipso facto, major excommunica-

***Reiff., lib. v., tit. vii., n. 431.

2&6

Bouix, 1. c., pp. 217, 218.

MIb., De Judic., vol. ii., pp. 377, 378. Parisiis, 1866.

^Reiff., 1. c., n. 448, 449.

25SIb., n 15.

26St. Liguon, lib. vii., n. 76.

861Either because the guilty person was judicially convicted of heresy o

confessed his heresy in foro externo (Bouix, De Ep., t. ii., p. 219).

""

Bouix, De Episc., vol. ii., p. 219.&

"

Reiff., 1. c., n. 238-247."*

Avanzmi, Com. in C. Apost. Sedis, p. 68. Romae, 1872.



Of Bishops. 363

tion, row reserved, speciali inodo. to the Pope,"

in tfic Const,

Apost. Sedis of Pope Pius IX. II. We now answer: I.

No excommunication whatever atta hes to purely mental

heresy, neither is this sort of heresy reserved to the Roman

Pontiff; hence, it is absolvable, not only by the bishop, but

by any approved confessor.21"

2. Bishops may, either per

sonally or through others, grant absolution, both in foro in-

terno and in foro externo, from heresy which is notorious and

brought before their external forum.367 We say, either per

sonally or througli others; for this power is ordinary, and

therefore may be delegated to others.86 *

Hence, Protestants

Arho wish to abjure their heresy may be absolved by the

bishop or his delegate, and it is not necessary to recur to

Rome ;

2C * because, by the very fact that Protestants ask to

be received into the Catholic Church, their heresy is

brought before the forum extcrnnm of the bishop. 3. The

Pope alone can absolve from heresy which is notoria et uon

deducta ad forum judicialc. 4. It is certain that bishops, at

present, cannot absolve from occult heresy. The Council

of Trent.270

it is true, gave bishops power to absolve pro foro

conscientiae from all occult crimes reserved to the Pope, and

also from occultheresy?"

But this power, so far as regard.4

occult heresy, was subsequently revoked" a

by, and exclu.

sively reserved to, the Holy See, both in the Bulla Coena

Domini as published several times after the Council of

Trent, and in the recent. Constitution, Apostolicae Sedis, .of

Pius IX.27

*"*

Phillips, Lehrb., p. 402.*"*

Bouix, 1. c., p. 220.

487

Craiss., n. 1167-1170.a 8

Reiff., 1. c.,n. 369.269

Bouix, 1. c., p. 222.

870Sess. xxiv., cap. vi., d. R.

2"

Reiff., 1. c., n. 350. Bouix, 1. c., p. 223 seq

3)1So named because annually published in Die Coenae Dni. i.e., on Holy

Thursday (Salz., lib. Hi., p. 44).

874

According to the constitution Apost. Sedis, persons guilty of occult as

well as of notorious heresy incur excommunicatio latar scntcntiae speciali mod

Ponrifici Rom. reservata. C. Ap. Sedis, n.i.

; cfr. Craiss.,n.

998; Avanzini,Com. in C Ap. Sedis, pp. 14 and 68, 69.



364 Of Bishops.

581. Q. Can the bishops of the United States absolvefrom occult heresy ?

A. They can, by virtue of apostolical indult. For our

bishops have faculties from the Holy See, i, absolvendi ab

Jiaercsi . . . quoscunque. ... 2. Again, they have

power absolvendi ab omnibus censuris in Const. Apostolicae

Sedis (d. 12, Oct., 1869) Romano Pont ifid ctiam speciali modo>

reservatis, excepta absolutione complicis in peccato turpi ;"*

hence, they can, as a rule, absolve from occult heresy. We

say, as a rule ; for, generally speaking, they cannot absolve,

i, those heretics277 who have come from places where (v.g.,

in Rome) inquisitorial tribunals are still in existence; 2, nor

those who relapse into heresy after having judicially (i.e.,

before an inquisitor, bishop, or his delegate) abjured it.278

Our bishops, therefore, can, either personally or through

worthy priests of their dioceses, absolve pro utroque fora

from every kind of lieresy, whether notorious or occult,2 "

ex

cept in the two cases just given.

ART. XL

On the Power of Bishops to Reserve Cases.

582. I. Although bishops may undoubtedly reserve

cases to themselves,280

it is fitting that they should do so

rat.her in than out of synod, chiefly because reservations

275

Facult., form, i., n. 15. Ib., n. 16.

377However, if these heretics have become guilty of heresy in missionary

countries where haereses impune grassantur, they may be absolved by our

bishops or their delegates (Facult., 1. c., n. 15).

a7B But if these heretics are born in places ubi impune grassantur haeteses,

and, after having judicially abjured, relapse, upon returning to these places

they may be absolved by our bishops or by priests authorized by them>

but only in foro conscientiae (Facult ., 1. c.)

*"

Cfr. Reiff., 1. c., n. 369, 370 ;et lib. iv., App., facult. i., x., vol. v., pp. 547

"48.

b

Bouix, De Episc , vol. ii., p. 242



Of Bishops. 365

made in synod are, according to all, perpetual,2 & 1

tfhile those

made out of synod are considered by many as temporary.

Cases reserved to bishops are of two kinds.282

Some are re

served by bishops (named a nobis i.e., casus rcscrvati a nobis),

whether in or out of synod ;others to bishops (nobis i.e.,

casus rest-rvati nobis), but not by them : v.g., all those cases

which, though reserved to the Pope, are, nevertheless v.g.,

because they are occult absolvable by bishops; also the

three cases reserved to ordinaries in the C. Ap. Scdis. II. The

5. Congr. Episc. has repeatedly admonished bishops to re

serve, i, but few cases; 2, only the more atrocious and more

heinous crimes; 3, it has forbidden them to reserve sins or

cases already reserved to the Sovereign Pontiff, so as to

avoid superfluous reservations.284 What particular cases or

crimes it may be expedient for a bishop to reserve in his

diocese cannot be determined by any fixed rule, but must

depend upon circumstances. III. Bishops generally reserve

certain grievous sins which are more frequently committed

in their respective dioceses. Bouix, 1. c., thinks that in France

bishops

should not, as a rule, reserve more than two, or at

most three, cases. Our bishops do not. generally speaking,

go beyond this number.

|3|P The Third Plenary Council of Baltimore (n. 127) makes

the following reservation for the whole United States: I.o

" Decernimus catholicos, qui coram ministro cujuscunque sectae

acatholicac matrimonium contraxerint vel attentaverint, extra

propriam dioeccsim,in

quolibetstatu vel territorio sub ditione

praesulum qui huic concilio adsunt vel adesse debent, excom-

municationem incurrcre episcopo reservatam, a qua tamen

quilibet dictorum ordinariorum sive per se sive per sacer-

dotem ad hoc delegatum absolvere poterit.2. Quod si in

propria dioccesi ita deliquerint, statuimus eos ipso facto iu-

nodatos esse excommunicatione. quae nisi absque fraude

leg-is aliiim episcopum adeant, eorum ordinnrioreservatur."

^ Bened. XIV., De Syn.. lib. v.. cap. iv., n. 3.i8i

Salz., lib. iii., p. 45.

383Jan. g, 1601, and Nov. 26, 1602.

W4 Bouix, 1. c., p. 243.



366 Of Bishops.

IV. When the Pope gives any one power to absolve from

pontifical reservations, he does not thereby confer power to

absolve from cases reserved by bishops.2

Hence, not even

regulars can absolve from diocesan or episcopal reserva

tions.21 "

If a penitent, who has committed a sin reserved byhis bishop, confesses in another diocese, where the sin is not

reserved, he may there be absolved by any simple confessor,

provided he did not go chiefly in fraudem legist When a

case is reserved in a provincial council, the power to absolve

from it is not taken from the several bishops of the province.9 "

ART. XII.

Of the Power of Bishops relative to Ecclesiastics.

583. Ecclesiastics are either diocesan or extraneous.

I . Power of Bishops over the Diocesan Clergy.

584. I. According to the ancient discipline of the

Church,294

no person was promoted to any ordo, whether

major or minor, without being, at the same time, attached to

some church or pious place, where, even prior to

being

or

dained a priest,295

he exercised permanently the duties of

whatever order he had received. Nor was he allowed to

depart from the church for which he was ordained without

the permission of the bishop.296

This discipline had become

obsolete many centuries before the Council of Trent.2 "

Clerics were promoted even to the priesthood ad titulum

patrimoniior

pensionis i.e.,absolute

and without being as

signed to any church or receiving any ecclesiastical appoint

ment.298

Ecclesiastics thus ordained were at liberty either

to leave their dioceses entirely or live out of them. Hence,

many clerics were continually roving from place to place,

M0Kenrick, tr. xvrii., n. 159, 176.

i21

Phillips, Lehrb., pp. 563, 564192

Bouix, 1. c., p. 243.*>3

Ib., p. 244.

394Phillips, Kirchenr

,vol. i., p. 608. Ib., pp. 612-617, 620.

wIb., p. 610.

97

Bouix, I.e., p. 269."*

Phillips, 1. c., pp. 608, 6ti.



Of Bishops. 367

and were in consequence scarcely amenable to any bishop.

II. To remedy this state of things the Council of Trent9

restored the above ancient discipline, so far as major or

sacred orders are concerned, ordaining that no one should

be promoted to sacred orders"" without being attached to

some determinate church, and that a person thus attached

should not quit his place without permission from the

bishop. This Tridentine law, however, seems at present to

have almost universally fallen into desuetude." It is not

observed in the United States. In fact, it were imprac

ticable, as things are at present, to attach seminarians, when

ordained subdeacons or deacons, to any particular church,

that they might act as such;for they remain most of the time,

before their ordination to the priesthood, in the seminary,

and could therefore be of little use to pastors.302

Moreover,

from certain declarations of the 5. Congr. Cone., it may be in

ferred that the Tridentine law on this head no longer obtains

strictly.

3 & 3

Benedict XIV.,304

however, holds the contrary.

585. Q. Can ecclesiastics leave their dioceses without the

permission of the bishop ?

A. We premise: A distinction must be drawn between

ecclesiastics who are attached to some special church, in the

Tridentine sense, or have a benefice requiring personal resi

dence, and those who are not so attached or have no such

benefice. We now answer: I. It is certain that ecclesiastics

of the first class cannot abandon their church or give up

their benefice v.g.,

parish,canonship and go to another

diocese without permission from the bishop.305

This is evi

dent from the Council of Trent,"18

and also inferable from

the promise of obedience given in ordination. We say,

without permission from the bisliop ; for, although the fathers

Sess. xxiii.. cap. xvi., d. R.M0

Phillips, 1. c, pp. 619, 620.

101Bouix, 1 c

, p. 172.*"

Craiss., n. 1003, 1004.10J

Ib., n. 1005.

104

De Syn.. lib. xi., cap ii., n. 13.

M5

Bouix, I. c .

pp. 270-274.**

Sess. xxiii., cap. xvi., d. R.



368 Of Bishops.

cA Trent merely say"

without consulting the bishop (incon*

sulto episcopo), this phrase is commonly explained by canonists as meaning,

"

without the permission of the frshop"

(invito cpiscopo} 2. As to the second class of ecclesiastics,

the question is controverted. The affirmative namely ,that

they can leave, etc. is the sententia communior of canonists.

This was also, until of late, the view of the S. Congr. Concilii.

We say, until of late ; for the more recent declarations of

this congregation seem to favor the negative Hence, as

Craisson infers, these ecclesiastics cannot, at present, with

drawentirely from their dioceses except by permission of.

the bishop. The reason seems to be that these ecclesiastics,

though not ordained for any particular church, are ordained,at least, for the service

ofthe diocese

tilT 586. Can priests in the United States entirely with

draw from their dioceses without the permission of the

bishop? They cannot. For the Second Plenary Council

of Baltimore (109) declares that all priests in this countrywho are either ordained for a diocese or properly admitted

into it are obliged to remain in the same diocese until theyare

canonically dismissed from it

310

Nay, those priests, withus, who are ordained ad titnlum missionis, and who, conse

quently, before being ordained, must swear that they will

remain perpetually in the diocese for which thev are or

dained, cannot leave these dioceses, even with the permissionof their bishop. For. at. present, according to the Instruc

tion of the S. C. de P. F. de Titulo Ordinationis, dated April

27, 1871, they can be released from their missionary oath

binding them to their diocese only by the Holy See, and not

by the bishop. Hence the bishop cannot give such a priestan exeat except after the release or dispensation from the

oath has been granted by Rome. However, by special

indult of the S. C. de P. F., dated Nov. 30, 1885, granted at

& Uouix. 1. c.. p. 270:*

Ib.. pp. 277. 278.Craiss.,

n.10083111 Cone. PI. B;,lt II.. n. 109.



Of Bishops. 369

the request of the TJiird Plenary Council of Baltimore, our

bishops may now give exeats without the above papal dis

pensation to priests ordained ad titulum missionis, who wish

to pass from one diocese to another of t/ie same province, as

we shall explain a little later on.

587. Letters Dimissory, Testimonial, and Commendatory.

1. Letters dimissory (litterae dimissoriae, revercndac, licentiates)

are those given by a bishop to his subjects in order that they

may be ordained by another bishop ;or also those by which

ecclesiastics are freed from the jurisdiction of their bishop.

In the latter sense, however, letters dimissory are with us

called exeats (litterae excorporationis, formerly litterae for-

matae]. Priests cannot be forced to take their exeat; in fact,

bishops should not give exeats, except at the request of

clergymen wishing to leave the diocese. Moreover, no

priest, even in the United States, should receive his exeat

unless it be certain that he will be received by another

bishop. At present, a priest in the United States is re

ceived into another diocese in two ways, namely, formally

and presumptively. As to the manner in which both the

formal and the presumptive admission take place, see the

Third Plenary Council of Baltimore, n. 62-69 1 It)., p. civ.

2. Letters testimonial (litterae testimonials) testify to the orders

received and to the absence of any canonical impediment

prohibiting a priest from saying Mass. 3. Letters commenda

tory (litterae commendatitiae) bear witness, moreover, to the

morals and learning of ecclesiastics, and are given to them

when about to travel. The S. C. de Prop. Fide, by letters

of its cardinal prefect, dated April 20, 1873, commands

bishops, vicars, and prefects-apostolic of missionary coun

tries, not to receive any strange ecclesiastics and priests into

their dioceses, or allow them to say Mass, unless they bring

with them commendatory letters from their bishops.

2. Rights of Bis/tops in regard to extraneous Ecclesiastics.

588. A bishop not only can, but should, forbid priests

who are strangers and have no letters commendatory from



370 Of Bishops.

their ordinaries, from being allowed to say Mass in his dio

cese." He miy, moreover, if he chooses, ordain that

strange priests should show their letters either to himself or

his vicar-general, and that they be prohibited from saying

Mass without a written permission from himself or his vicar-

general."

1 We say, lie may, not he sJiould ; for he can allow

them to say Mass, provided they exhibit their letters com

mendatory to the rector of the church where they wish to

celebrate. The bishop may also command exempt regulars

not to permit strangers, whether they be secular priests or

regulars of a different order, to say Mass, even in their

exempt churches, without permission from him or his vicar-

general. We say, regulars of a different order ; for regulars

of the same order can say Mass in the houses of their order

everywhere without having permission from thebishop."

2

A priest who is a stranger, even though he has no letters

commendatory v.g., if he has lost them on his journey can

and should be permitted by the bishop to say Mass, pro

vided he can sufficiently prove by witnesses, or in some

other way, that he is a worthy priest ;

323

nay, he may, even

if unable to show his good standing, and if,in

consequence,not allowed to say Mass, celebrate privately, provided it can

be done without scandal.3 " The obligation incumbent on

bishops not to allow Mass to be said by outside priests

who are unprovided with letters commendatory from their

ordinaries325

is to be understood of extraneous clergymen

who are unknown, but not of those who are eitner wen

known or at least known to one or several trustworthy per

sons in the diocese."6

Thus, in the United States, and

almost everywhere, priests coming from neighboring dio-

20Cone. Trid., sess. xxiii., cap. xvi., d. R.; and sess. xxii., Deer, de ob-

erv. ct evit. in Celebr. Missae.s "

Bouix, 1. c., pp. 292, 293.

*"

Ib.;

cfr. Craiss., n. 1015.323

Bouix, 1. c., p. 294.

124Ib.

3& 6

Ib., p. 295 ;cfr. ib., De Jure Regular., vol. ii., pp. 188, iSo

c* Cfr. Craiss., n. 1012 1016.



Of Bishops. 371

jeses are allowed, at least for the first eight or ten days, tn

say Mass without having or showing any letters commenda-

tory. A bishop cannot forbid outside priests to say Mass

solely because they are strangers.327

Nay, extraneous

priests, even though unprovided with letters commenda

tory, cannot, without just cause, be compelled by the

bishop to leave the diocese, if they do not wish to cele

brate, but merely to reside there.328

589. Q. What are the rights of bishops in the United

States as regards extraneous clergymen ?

A. We premise: These clergymen are of two kinds: I.

Some travel or make short trips out of their dioceses for the

sake of recreation, the

goodof their

health,or to

makecollections. 2. Others leave their dioceses in order to

seek admission into other dioceses. We now answer: i.

The first class falls under the above rules in regard to say

ing Mass. Priests, with us, are forbidden, under pain of

suspensio ferendae sententiae from making collections in a

strange diocese without the permission of the ordinary of

theplace.II. As to the second class, bishops are exhorted not to

give them permission to say Mass, or administer the sacra

ments, and, a fortiori, not to receive them into their dioceses,

I, if they have no letters commendatory from the ordinarv

to whom they last belonged ; 2, if they have neglected to

select another ordinary within six months.330

Extraneous

priests coming from Europe should not be admitted into a

diocese nisi littcris suorum episcoporum prius missis, consensum

fpiscopi in cujus dioeccsiin transirc desiderant, obtinuerint?^

\ij~ III. At present, according to the Third Plenary

Council of Baltimore, secular priests applying for admission

into a diocese cannot, as a rule, be forthwith adopted per-

521

Bouix, De Episc., 1. c., p. 297. ;W8 Ib., p. 300.3i9 Cone. PL Bait. II., n. 119.

:i::o

Ib.. n. no. 331Ib., n. 121.



372 Of Bishops.

manently, but must be first received on probation for a termof three or five years. We say, as a rule : for, by the consent of

the bishop receiving-, and of the bishop dismissing, and of the

priest to be received, this probatory term can be omitted.&

IV. Besides, when there is question of a priest ordained

for or received into a diocese ad titulum missionis, the bishop

who is about to receive him should, six months before adopt

ing him absolutely, write to the S. C. de Prop. Fide for a

dispensation from the missionary oath. For, all priests who

are ordained ad titulum missionis must take the oath to re

main perpetually in the diocese or vicariate for which they

are ordained. This oath binds so strictly that the Holy See

alone can grant a release from it. When the bishop has ob

tained this release or dispensation, lie must administer the

missionary oath anew to the priest whom he is about to ad

mit into his diocese. (Cone. PI. Bait. III., n. 64 .)

"

V. What has just been said respecting the dispensation

from and renewal of the missionary oath does not, at pres

ent, apply to priests ordained "ad titulum missionis" who

wish to pass from one diocese into another within the same

ecclesiasticalprovince. For, by special

indult of the

HolySee, dated Nov. 30, 1885, the missionary oath taken by priests

ordained ad titulum missionis, binds, in future, or holds good

for the entire province, and not merely, as was the case for

merly, for the single diocese for which it was taken. Con

sequently, priests ordained ad titulum can now, with the

332 Cone. PI. Bait. III., n. 63; Instr. S. C. de P. F. 1871, n. n, 12; cf. De

Angelis, 1. i., t. xxii., n. 4.

* The S. C. de P. F.,Ad Dubia circa ordinatos Tit. Miss., decided, on Feb. 4,

1873: Q. 4. Utrum explicatius declarandum sit, sacerdotem a dioecesi cui

juramento ligatur ad aliam transeuntem debere in hac altera novum juramen-

tum emittere; neque hoc facere posse absque venia S. Congregationis.

Q. 5. Utrum necessario requiratur venia S. Congregationis ut ordinatus

titulo missionis quin praestiterit juramentuni. posMt a dioecesi pro qua ordi

natus fuit, ad aliam transire. The S. C. de P. F. replied: Ad 4 affirmative ad

vtrumque. Ad 5m affirmative. (See Cone. PI. Bait. III., pp. 2IO, 211.)



Of Bishops. 373

consent of the bishop dismissing, and of the bishop receiving

them, pass from one diocese into another, within the same

province, without obtaining any papal dispensation releas

ing them from their former oath, and without, taking the

oath anew for the cliocese into which they are to be received.

(Sec Cone. PL Bait. III., p. civ.)

VI. As to the admission of priests who leave religious

communities having solemn or only simple vows, the Third

Plenary Council of Baltimore, n. 65, enacts :

"

Quod vero per-

tinet ad sacerdotes religiosos, qui vota solemnia nuncuparunt,

atquc ex apostolica indulgentia in saeculo vivere permittun-

tur; vcl qui ediderunt vota simplicia et a suis congregatio-

nibus cgressi sunt, si ad episcopum accedant petuntque in ejus

dioecesim adscribi, primo quidem tantum ad missae celebra-

tionem, dummodo literas saecularizationis ac commendan-

tias Ordinarii loci a quo discesserunt exhibeant, admitti

possunt, nondum vero ad triennale experimentum in ministerio

pastoral . Volumus enim, ut ad hanc probationer sub-

eundam non admittantur, antequam episcopus, exquisitis ab

ordinis vel Instituti

superioribus

et episcopo commendante

secretis informationibus, iisque ad S. Congregationem remissis,

hujus veniam sciscitatus sit ; qua obtenta, peractoque experi-

mento, ii qui non ad tempus, sed in perpctmtm S. Congrega-

tionis Episcoporum et Regularium rescripto saecularizati

sunt, clero dioecesano incardinari possunt, dummodo priusde

titulo canonico sibi providerint. Quod si assumunt titulum

missionis, simul juramentum dioecesi perpetuo inserviendi

praestarc tenentur (Instr. S. C. cle P. F., 17 Apr. 1871, n.12)."

VII. Finally, the Third Plenary Council of Baltimore (n. 67)

decrees that no bishop shall give an exeat to any of his priests

unless it is certain that such priest will be received into an

other cliocese; that where a priest has received his exeat

before he has been received into another diocese, such exeat

shall not take effect, and such priest shall not be considered as

dismissed from the diocese, until he has been either formally



374 Of Bishops.

or presumptively received into another diocese, and until

(when there is question of the formal admission) his bishop

has been authentically notified of the admission.

ART. XIII.

Of the Powers of Bishops concerning Indulgences.

590. Q.What are the

indulgenceswhich

bishopscan at

present grant by virtue of the/?*.? commune f

A. i. An indulgence of one year,333

in the consecration,

not mere blessing,834

of a church; 2, of forty days only in

other cases. We observe: i. These indulgences may be

granted also by bishops-elect ;because the giving of an in

dulgence is an act of jurisdiction, not of order.836

2. They

can be granted for the living only, not for the dead. 3.

Bishops can grant them only to their subjects ;an indul

gence, however, attached by the bishop to some pious place

v.g., to the visiting of and praying in some church or

chapel338

(indulgentia localis] may be gained by strangers

who comply with the conditions prescribed.337

4. Arch

bishops can grant them, not only in their own dioceses, but

in all the dioceses of their provinces, and that even out of

the visitation.338

5. Bishops may delegate the power of

granting them not only to priests, but also to inferior eccle

siastics. 6. Neither coadjutor nor titular(i.e.,

in partibus)

bishops nor vicars-general have power to concede indul

gences, unless they are specially empowered to do so by the

ordinaries of places. Neither can vicars-capitular, scde va

cante, grant indulgences.339

591. Q. What indulgences can the bishops of the United

States grant by virtue of the jus speciale or particulare i.i\,

by virtue of the faculties given them by the Holy See ? In

*"

Ferraris, V. Indulgentia, art. i., n. 5 ;cfr. Konings, n. 1778.

334 Our Notes, n. 251.335

Bouix, 1. c., pp. 301, 302.

sst>

Ferraris, 1. c., n. 18.337

Bouvier, Inst. Theol., vol. Hi., p. 5261

138Cfr. Phillips, Lehrb., p. 571.

339Ib.



Of Bishops. 375

other words : What special indulgences are grantable by

our bishops ?

A. A plenary indulgence, i, to all the faithful of their

dioceses three times a year ;

34

2, to all persons when first con

verted from heresy ;

341

3, to each of the faithful, in articulo

mortis; 4, in the Forty Hours Devotion;3 "

5, our bishops

may also impart, four times a year, the Papal benediction,with a plenary indulgence, to be gained by those present.

3 "

They can also declare an altar privileged in every church of

their dioceses;

344bless rosaries, crucifixes, sacred images,

3 "

erect certain confraternities, the Way of the Cross, with all

the customary Papal indulgences, etc.346

Publication of In

dulgences granted by the Pope. To guard against imposition

and prevent abuses in this matter, Papal indulgences can, as

a rule, be published in a diocese only with the permission of

the bishop.347

Hence, Pontifical briefs granting new indul

gences, even though it be to churches of regulars,348

are to be

submitted to the bishop before being published.349

However,

as Konings, n. 1778, says, indulgences conceded by the Pope

to the entire Church in rescripts already published and

quoted by approved authors v.g., by Ferraris or contained

in the Raccolta, or Prinzivalli s Collection, do not require

the episcopal promulgation.

ART. XIV.

Rights and Duties of Bishops in regard to Relics.

592. By the relics of saints (reliquiae sanctorum} are

understood not only their bodies, in whole or in part, but

also their garments, instruments of penance, and the like.36

&

Relics which are newly discovered, or produced for the first

M0Facult., form, i., n. 14.

3 "

Ib., n. 17.

M2Ib., n. 1 8

;cfr. ib., n. 19, 20.

S43Facult. Extraord. C., n. 7.

144

Ib., n. 8.S45

Ib., n. 9.34*

Ib., n. 10, ap. our Notes, pp. 463, 470 seq

847Phillips, 1. c., p. 572 ;

cfr. Cone. Trid., sess. xxi., cap. ix , i. R.

"

Supra, n. 112;

cfr. Craiss., n. 1022.349

Ferraris, I.e.. art.iv., n. 31.

160Ferraris, V. Veneratio Sanctorum, n. 52 ;

cfr. Reiff., lib. iii., tit. xlv., n. 24.



3/6 Of Bishops.

time cannot be exposed for public veneration (cultus publicus)

until they have been properly authenticated and approved.31

quot;

Old relics, however, even though their authentications are

lost, should be held in the same veneration as before.5"

I. Authentication of Relics. By whom are relics to be ex

amined and approved before being exposed for public vene

ration? We premise: We here speak of newly-discovered

or newly-produced relics. We now answer: i. The relics

of those who are already canonized or beatified may be au

thenticated and approved in order to public veneration,

not only by the Roman Pontiff, but also by bishops ; nay,

these relics, even though already approved by the Pope,

should, nevertheless, be again examined by bishops before

being exposed in dioceses, for the purpose of ascertaining

whether they were in reality authenticated in Rome.353

Relics, therefore, cannot be exposed in a diocese for public

veneration, even in the churches of regulars,364

without the

permission of thebishop."

5

Should, however, any grave

question arise touching these matters, the bishop should not

proceed without having first consulted the Pope.3 & 6

2. The

relics of persons deceased in the odor of sanctity, but not yet

beatified, can be approved, for public veneration, by the Pope

only, not by bishops.357

At present, however, these relics are

not thus approved by the Pope ;for this approbation would

be equivalent to beatification, which now precedes the public

veneration of relics. It is allowed, however, to honor pri

vately (cultus privatus) all relics, new as well as old, not only

of those who are canonized or beatified, but also of those whodied in the odor of sanctity, even when such relics have not

been approved by any one.358

II. Transfer of Relics (transla-

tiones reliquiarum). Can bishops transfer the bodies or really

161Cone. Trid., sess. xxv., De Invocat., etc ; cfr. Reiff., 1. c

,n. 2t>.

"*

Ferraris, 1. c., n. 61.353

Reiff., 1. c., n. 27.

JMFerraris, 1. c,, n. 55, 56.

3; 5

Phillips, 1. c, pp. 724, 723.

**Cone. Trid., 1 c., in fine.

-57

Reiff, I. c., n. 28. 3MIb., n. 20, 30



Of Bishops, 377

principalrelics (reliquiae insignes] of saints from one church to

another without the permission of the Holy See ? There are

two opinions.The negative namely, that they cannot, etc.

held by Benedict XIV.359

and others, seems at present the

more probable opinion.Relics cannot be sold.

36

ART. XV.

Rights and Duties of Bishops respecting, I, Stipends of Masses,

2, the Reduction of the Number of Founded Masses ; 3,

other Pious Legacies.

593. I. Stipends of Masses. I. It is certain that the

bishop has a right to determine what sum of money shall

constitute a just honorary for Masses or intentions ; arid even

regulars are bound to abide by the rule laid down by him.8 "

It is commonly held by canonists that the alms, as fixed by

the bishop or custom, is to be considered a just stipend ;

"

it need not, however, constitute the support of a priest for a

whole day.363

In the United States the honorary is general

lyone dollar

($i).

3 "

2. It is certain that priests cannot

demand, though they may accept if spontaneously offered, a

stipend larger than that fixed by custom or episcopal enact

ment.385

3. According to the more probable opinion, the

bishop can ordain that priests shall not accept less than the

honorary established by custom or law. In the United

States priests should not, as a rule, accept less than the

amount fixed by the bishop.

368

594. What is to be said of churches v.g., cathedrals or

larger parishes where a great number ofstipends is received?

i. It is not allowed,367

except with the consent of those giving

868 DC Beatif. et Canoniz., lib. iv., part, ii., cap. xxii., n. 11-20.

890

Reiff., 1. c., n. 31.S61

Bouix, 1. c., pp. 302, 393-3M

Craiss., n. 1039.

188

Phillips, 1. c., p. 551 ;cfr. Cone. PI. Bait. II., n. 369, note 2.

"*

Our Notes, n. 331.

*"


**Ib.

**Craiss., n. 1042.



3/8 Of Bishops.

the stipends, to accept these honoraries in such quantities asto render it impossible to celebrate all the corresponding

Masses in due time.363

In the United States, as elsewhere, it

is customary to send intentions, when too numerously re

ceived, to other priests less favored. Care, however, must

be taken that the Masses are said in due time. A delay ex

ceeding three months is, generally speaking, a mortal sin;

nay, as regards Masses for recently-deceased persons, a

delay of one month constitutes, according to many, a mortal

sin."

9

2. Bishops should see that rectors of these churches

do not retain for themselves, or even for their churches, any

portion, however insignificant, of the stipends ; only, in

caseS7

they are too poor to bear the necessary expense at

tendant on the celebration of the Masses,8 "

it is allowed to

keep merely as much as will cover these outlays.

595. II. Foundations for Masses. Mere stipends (eleemo-

synae missarum, eleemosynae manuales, honoraria, stipendiaS7a

)

differ from foundations for Masses (fundationes Missarum,

Missae fundatae] ;the latter

S7Sare endowments made to en

sure the permanent celebration of Masses;

s "

the former are

given for the celebration of Masses in this or that case only.

We observe: i. Secular priests, even in the United States,87 *

cannot accept foundations of Masses without the written

permission of the bishop.378

2. Regulars must have the con

sent of their superiors-general or provincials. We ask : Can

bishops at the present day reduce the number of founded87T

868

Bouix, De Capitulis, p. 273.s69

Konings, n. 1324, q. 2, 3.

879 Bouix, 1. c., pp. 273, 274.

171 These expenses v.g., for altar wine, candles are defrayed, with us,

from the income of the church.3r &

Phillips, 1. c., p. 549.S73

Ib., p. 552.874

I.e., either for a given number of years or perpetually (Cone. PI. Bait

II., n. 370).*

Cone. PI. Bait. II., n. 370.378

Bouix, De Episc., vol.ii., p. 304.

77 We say, founded Masses; because no reduction can take place in regard

to ordinary intentions or Missae manuales (Bened. XIV, De Syn., lib. xiii.,

cap. ult., n. 29).



Of Bishops. 379

Masses ? They cannot, except with the permission of the

Holy See.878 The Council of Trent, it is true, gave bishops

the power to do so in certain cases. But this power, except

where the instrument of foundation itself authorizes the

bishop to make a reduction, was reserved exclusively to the

Holy See by Pope Urban VIII.379 The reasons for which

the

HolySee, if

appliedto,

usually grantsa reduction of

the number of Masses to be said (reductio Missaruni), are, for

instance/ I, the scarcity of priests, making it impossible to

say the Masses; 2, depreciation of the fund$ or capital; 3,

total loss of the fund. If, however, the fund is lost without

any fault on the part of the ecclesiastical authorities, the

obligation to celebrate lapses ipso facto**1 We observe here,

bishops not unfrequently receive faculties (v.g., for five or

ten years, or longer) from the Holy See to reduce the num

ber of Masses where it is necessary to do so.

596. What does the Second PI. Council ofBaltimore counsel

in regard to foundations of Masses, whether perpetual or tem

porary, in the U. S.? I. No general rule as to the requisite

amount of the fund can be laid down for the whole country ;

each ordinary is free to fix the sum for his diocese.

382

Nevertheless, the fathers seem to recommend that, especial

ly as regards perpetual Masses, the fourtfi decree of the

Second Provincial Council of Cincinnati be followed to

wit : That the fund or endowment for an annual Low Mass

be at least $50; for a High Mass (Missa Cantata], $ioo.SPS

3.

Great circumspection should be used in accepting founda

tions, especially of perpetual Masses.384 It were advisable,

therefore, to accept foundations only on the following condi

tions : i . That the obligation to celebrate shall cease ifthe fund,

*" This holds true also of bishops in the United States. (Cfr. Cone. PI.

Bait. II., p. 319).

""Bened. XIV., 1. c., n. 19, 20; cfr. Const. Cum Saepe of Urban VIII.,

Jan.21, 1625.

SBOBouix, 1. c., p. 304-

M1Phillips, 1. c., p. 554.

Cone, PI Bait. II., n. 370.s "

Ib., Append., p. 319-""*

Ib - n- 3?o-



3So Of Bishops.

no matter from what cause, be either entirely lost or yield noincome

; 2, that the ordinary shall have power to reduce the

number of Masses if the interest on the capital, no matter for

what reasons, becomes insufficient to make up the stipend

hxed by the founder; 3, that if, for whatever cause, the

church in which the Masses are to be said is destroyed or

deprived of a priest, the Masses can be said in any church

to be designated by the ordinary.386

597. What is decreed by the Second Plenary Council

of Baltimore concerning the record to be kept of Masses,

whether ordinary or founded? i. In all churches, regular

as well as secular, there should be a tablet or plate (catalogus,

tabella onerum), on which should be inscribed all founded

Masses, whether temporary or perpetual.386

2. In every

sacristy there should be two registers : one in which a re

cord is to be kept of all founded Masses;another where the

ordinary intentions are to be noted down. The fulfilment

of the obligation i.e., the celebration of the Masses should

also be carefully recorded in these books respectively.387

Bishops not only can, but should, enforce those regulations,

especiallyin churches where a

largenumber of Masses are

celebrated.38 &

598. III. Devises and Legacies for Pious or Charitable

Uses (testamenta ad causas pias, legata pid). By testamenta ad

causas pias are understood those last wills in which the testa

tor leaves""

his (real] estate, i,to a church

; 2, or to a charitable

institution v.g., to an asylum, hospital, protectory ;

3fl

or, 3, to

some religious or charitable society/

1"

Legata pia or ad pias

causas are legacies (i.e., personal property given by wills) left

for religious or charitable uses."" We now ask : Can bishops,

*"*

Konings, n. 1325, qu. 18.8b6

Cone. PI. Bait. II., n. 371.m

Ib.

*88

Bouix, De Capitulis, p. 274. Paris, 1862.

189 Of course, for religious or charitable purposes."

Cfr Soglia, vol. ii., p. 264.W1

Ib., p. 263.

i%w Ib , p. 265 ; cfr. Konings, n. 915.



Of Bishops. 381

even for just reasons, alter these last wills or legacies ? In

other words, can they use the money or real estate thus de

vised for other purposes than those specified in the will ?

The question is controverted. According to St.Liguori,*"

the negative namely, that they cannot is the scntentia

probabilior.The Pope alone can, for just cause, change

these wills. However, the following is certain:I.

Where,

by reason of custom (v.g.,in France), bishops alter such

wills without the permission of the Holy See, it is safe to

abide by the decision of the bishop.384

2. Bishops are, ac

cording to canon law, executors of all pious dispositions

\lcgata pia, dispositions* piac\ whether made by last will or

between the living ; they should consequently see to the

exact performance of what is enjoined in these legacies.

This holds true even though the testator expressly excludes

the bishop from the executorship."

95

3.The testator may,

however, appoint any other suitable executor ;in this case

the bishop cannot directly interfere; but, if the executor

neglects to carry out the provisions of the will, the execu

tion devolves on the bishop ;this holds also of bequests

inter vivos.w We observe : Property in the United States

cannot be legally devised to a corporation (v.g.,to a church,

when incorporated), unless such corporation is authorized

by its charter to receive bequests by will.597 We say, legally;

for devises for religious and charitable uses are valid and

binding, in foro conscientiae, even though null according

to law,

"

Lib. iv., n. 931, qu. 2.m

Craiss., n. 1048-

"

Ferraris, V. Episcopus, art. vi., n. 171, 172.*"

Ferraris, 1. c., n. 17*

mWells, p. 94 ;

cfr. Kent, vol. iv., n. 507.



O oz Of Bishops

ART. XVI.

Rights and Duties of Bishops concerning tJie Taxes of tht

Episcopal Chancery.

599. By authority of Pope Innocent XL, adecree,**"

written in Italian, was issued in 1678* fixing the emolu

ments that can be asked or received for the various acts,

instruments, or writings of the episcopal chancery.400

The

object of this decree, usually named Taxa Innocentiana,

was to introduce, as far as possible, a uniform rate of taxa

tion into all episcopal chanceries throughout the world.401

600. Q. What are the chief regulations contained in the

decree of Innocent XI. ?

A. I. Neither bishops nor their vicars-general or other

officials can ask or receive anything,402

even though it be

voluntarily offered, i, for the conferring of orders or for

other acts pertaining to ordination v.g., for permission to

receive orders from some other bishop ; 2, for appointments

(collatio)

to benefices orparishes

;

3,

for

dispensationsfrom

impediments of marriage or from the publication of the

banns and the like.403

Though bishops, in granting matri

monial dispensations, cannot accept any honorary, they are,

as a rule, allowed to receive a suitable alms, to be applied

for charitable uses.404 We say, alms; now,

"

eleemosynae

nomine intelligi non potest fixa quaedam summa a quovis

eroganda, sed ea, quam quisque, ratione habita suarum facul-

tatum, commode darepotest."

405

Hence, they cannot estab

lish or demand a fixed tax or sum of money for dispensa-

mFerraris, V. Taxa. *"

Phillips, Lehrb., p. 290.***

Bouix, De Episc., vol. ii., pp. 307, 308.401

Ferraris, 1. c., n. r, 2.

402

Except the candle offered by the person ordained, according to the Pon

tifical.403

Ferraris, 1. c., vol. viii., col. ii., p. 216.404

Craiss., n. 1057.40S Cone. PI. Bilt II.. n. iSfi. note i

;cfr our Notes, n. 353.



Of Bishops. 383

dons ;

<08

they may, however, suggest the amount of alms, to

vary according to the means of the petitioners. In this

sense, it seems to us, the taxes for dispensations, as estab

lished in the United States, must be understood. II. How

ever, the chancellor of the bishop may receive a moderate

fee for his labor in drawing up the requisite papers in the

above cases.

407

Thus, according to the Taxa Innocentiana, he

may receive for letters dimissory, testimonial, and the like,

a Roman giulio (10 cents) ;for letters of appointment to

benefices or parishes, a Roman scudo ($i in gold) ;for writing

dispensations, three Roman giulios (30 cents). As a rule, the

chancellor s fe^ for each instrument should not exceed, at

the highest calculation, a Roman scudo($i). But he cannot

receive any fee for letters giving permission to say Mass,

administer the sacraments, preach, and the like.408

601. Can bishops dispose of the emoluments or receipts

of their chanceries, and in what manner ? We premise :

These receipts are of two kinds : i, chancery fees proper

i.e., the perquisites for drawing up letters of dispensation,

and the like; 2, alms for dispensations. We now answer:

i. The chancellor should have a fixed salary. The emolu

ments of the first kind i.e., the chancery fees proper may

go to make up this salary and to defray the other expenses

of the chancery office;

409the balance must be distributed

for pious uses, although the 5. C. C. has sometimes allowed

it to be used by bishops for their own wants.410

Bishops

therefore cannot, except by permission from the Holy See,

appropriate any part of these receipts to themselves. Where

the chancellor has no fixed salary these emoluments, it

400This applies also to bishops in the United States:

"

Quum facilitates

extraordinariae episcopis [in U. S.] a Sancta Sede collatae, sine ulla mercede

exercendae sint, nulla exigenda est taxa pro dispensationibus ab impedimentis

matrimonii . . . iis tantum exceptiscasibus, in quibus Ap. Sedes eleemosy

nam oratoribus injungendarn monet"

(Cone. PI. Bait. II., n. 386; cfr. ib.,p

-cxliii; C. PI. B;ilt. III., n. 134).407

Craiss., n. 1054.* 8

Ib., n. 1056.

409Bouix, 1. c,, pp. 313, 314.

4UlFerraris, V. Cancellaria, n. 12.



384 Of Bishops

would seern, belong entirely to him. 2. The receipts of

the second kind i.e., the alms for dispensations must be

applied exclusively for pious uses, and cannot go even to

wards making up the chancellor s salary.413

602. Is the Taxa Innocentiana i.e., the decree of Inno

cent XI. concerning the taxes of episcopal chanceries at

present obligatory all over the world, and even in the United

States ? It is ; for the .V. C. C.4J3

ordered that this decree

should be transmitted to all ordinaries of places ; that it

should be kept in a conspicuous place of the episcopal chan

cery, and be accurately observed?" Hence, i, bishops cannot

demand or receive anything for dispensations and the like

where this is forbidden by the Taxa Innocentiana ; 2, they

can, indeed, fix the taxes of their chanceries;

4I6but they

should do so according to the rate established by Innocent

XL, making due allowance, however, for the difference in

the value of money, both as to place and time.41 &

For what

was formerly purchasable for a Roman scudo costs at pre

sent twice as much. This holds true especially of the

United States. Hence, in several dioceses of this country,417

the chancellor s fee for

dispensationsis, and

justlyso, $r,

where the Taxa Innocentiana allows but 30 cents.

603. Regulations and Customs in the United States respect

ing the Taxes of Episcopal Chanceries. I. As a general rule,

a tax i.e., a determinate sum is prescribed for dispensa

tions from the publication of the banns;

4I8this tax usually

ranges between five and ten dollars for a dispensation from

all the proclamations. Is this tax, though undoubtedly prohibited by the Taxa Innocentiana, nevertheless legitimate

by reason of custom? Some say, yes; others, no.419

4UCone. Trid., sess. xxi., c. i., d. R.

41S

Craissl, n. 1057.41>

Oct. 8, 1678

414Bouix, 1. c., p. 311.

4I6Ferraris, V. Taxa, n. 12.

4ia

Craiss., n. 1052

417Cfr. Syn. Alban., ii., p. 15, an. 1869; Syn. Boston., ii., p. 35, an. 1868.

415Cfr. Stat. Dioec. Novar., p. 94 ; Stat. Dioec. Boston., p. 34 ;

Stat. Dioec.

AJban., p. 15.

41*

Cfr. Bouix, 1. c., p. 313



Of Bishops. 385

t. For dispensations from impediments, which are relaxed

by virtue of the facilitates D. and E., a suitable alms should

be enjoined.420

3. For dispensations from the other impedi

ments no alms is or can be required. 4. Besides the alms,

a suitable chancery fee may be demanded;

with us it is

usually $i for each instrument or paper, no matter of what

kind, issued in the chancery. In most dioceses, however,

no such fee is given or demanded. This custom is laud

able,431

and is, no doubt, owing to the fact that chancellors

are, in many cases, also pastors of congregations, receive

the pastor s salary, and are thus enabled to give their

services as chancellors gratuitously. Note. The Taxa In-

nocentiana was never, at least in its entirety, received in

the United States.

ART. XVII.

Right of Bishops to Constitute Assistant Priests and assign

them a sufficient Maintenance Division of Perquisites in

the United States.

604. Can the bishop compel a parish .priest to take one or

more assistant priests ? Whenever, owing to the number of

parishioners,422

one rector is not sufficient, the bishop not

only can, but should, oblige the parish priest to associate to

himself as many assistants as are required.423

Moreover, the

bishop, not the parish priest, is the judge whether or not,

and how many, assistants are necessary. The bishop can

"

Konings, p. 74. The statutes of the diocese of Newark say: When a

dispensation from the impediments mixtae religionis, disparitntis cultus, i""- out

zdi. gradus affinitatis,zdi-

g>adus consaiiguinitatis, or in radue is required, ap

plication will be made to the bishop, giving the names of the parties, and

stating whether they be poor, or in moderate circumstances, or well to do in

the world, and he will fix the amount of alms, to be remitted to him for pious

uses (Stat., p. 95).4ai Cone. Trid., sess. xxi. , c. i., d. R

MIb., c. iv., d. R.

4MBouix, 1. c., pp. 554, 555.



386 Of Bishops.

assign assistant priests a proper salary, to be taken out

of the revenues of the parish.424

605 . Can tJie bis/top ordain that a portion of the offerings re

ceived in the administration of the sacraments (baptism and

marriage] shall .go to make up the income or salary of assistant

priests ? In other words, can the bishop divide the per

quisites between the pastor and his assistants ? The question

is controverted. I. Those who hold the negative argue

thus : It is certain that these honoraries (cmolumenta stolae)

belong, jure communi, to the parish priest exclusively.444

Moreover, according to the far more probable opinion of

canonists, these perquisites are not to be accounted fructus

beneficii parochialis or reditus Ecclesiae i.e.,revenues of the

parish. Now, the law of the Church does not seem to give

the bishop power to set apart a suitable livelihood (portio

congrua, sustentatio congrua, or simply congrua} for assist

ants, except out of the income or receipts of the parish. It

is therefore doubtful whether the bishop can assign assist

ants a share of the perquisites. 2. The affirmative is thus

maintained : Bishops, according to the Council of Trent,4 "

may assignassistants a

partof the revenues of the

parishfor

their salary or sufficient maintenance, or provide for them in

some other manner. Hence, bishops may assign them part

of the perquisites.As this is a probable opinion, it follows

that if the bishop should decide that part of the perquisites

should be given to the assistants, his decision must be com

plied with.428

This whole question was agitated on occasion

of a decree of Monseigneur Affre, Archbishop of Paris, en

joining that out of the perquisites of each parish a common

fund should be made, to be divided between the pastor and

his assistants. From this decision the parish priests of Paris

4"

Bouix, De Episc., 1. c., p. 328. Ib., p. 329.

4MPhillips, Lehrb., p. 456.

"

Sess. xxi., c vi., d. R.

Bouix. 1. c., p. 332.4"

Craiss., n. 1061, 1062.



Of Bishops. 387

appealed to Rome in 1848. The decision of the S. C. C. was

not published.

606. Division of the Perquisites of Baptisms and Marriages

in the United States. Bishops in this country are exhorted

to establish, with the advice of theirpriests," an equitable

way of apportioning these offerings among- the priests re

siding in the same house, taking into consideration the chief

claim as well as the graver duties of the pastor.

IÎP The honorary usually given is at least $3.00 for a

baptism, and $5.00 for a marriage. The Third Plenary Coun

cil of Baltimore (n. 294) says: Itaque quod spectat ad jura

stolae et taxam pro ministeriis ecclesiasticis determinandam,

unusquisque episcopus agat in synodo dioecesana, vel extra

synodum auditis consultoribus eas leges ferat, quae clero ac

populo suo magis convenire videantur. Meminerint autem

(idque expresse in synodo commemoretur) ministeria eccle-

siastica pauperibus esse gratis praestanda. Taxam quoque,

si qua in synodo constituatur, Romam mittat, ut Sanctae Sedis

approbation i subjiciatur.

ART. XVIII.

Rights and Duties of Bishops relative to Preaching, etc.

607. I. Preaching. Bishops, according to the Council of

Trent/31

are, jure divino, bound, sub gravi, to preach person

ally ;if lawfully hindered, they should appoint fit persons to

discharge wholesomely this office of preaching.433

Universalcustom, however, has modified this duty. At present bishops

are indeed bound to preach from time to time (aliquando), but

notregularly, nor as often as parish priests.

434 The bishop

alone has the right to give permission to preach, and no person

4SOC. PI. Bait. II., n. 94.

431Sess. v., c. ii.

;sess. xxiii., c. i., d. R.

;sess. xxiv., c. iv.. d. R.

439St. Lig., lib. iii., n. 269.

433Cfr. C. PI. Bait. II., n. 127.

***Bouix, 1. c., p. 343; St. Lie-., lib. iv., n. 127.



388 Of Bishops,

can preach against his will. Regulars cannot preach, evenin churches of their own order, in opposition to the will of

the bishop. II. Celebration of the Mass. Bishops are obli

gated to offer up/7

on Sundays andholidays, the sacrifice

of the Mass for the entire diocese"

They should, unless law

fully hindered, celebrate solemn Mass at Easter, Christmas,

Epiphany, Ascension, Pentecost, Eeast of SS. Peter and

Paul, All Saints, etc."" 111. Administration of Chnreh Pro

perty. The bishop is the administrator, or rather guardian,

of the temporalities of the churches or parishes of his dio

cese.140

lie is obliged to leave to his cathedral all sacred

vessels, ornaments, and the like which were purchased with

church moneys. Hence, he should make an authentic and

accurate

inventory

"

of all

thingsused for divine

worshipand purchased by him, after his appointment to the see t

with church moneys or ecclesiastical revenues. Sacred

things thus bought belong to the cathedral.44

ART. XIX.

Right of Taxation as Vested in Bishops Contributions to be

given Bishops Collections ordered by Bishops in the United

States" De Juribus [Uilibus

Episcoporum."

608. -I. Contributions dcniandable by Bishops in general.

The faithful are obliged to contribute for the general

wants of the Church, and especially of their own diocese.

The bishop, therefore, can ask for contributions from all his

dioceseners, and especially from his clergy, for the needs of

the diocese/43

These offerings, whether of the faithful or

\clergy, should, however, as far as possible, assume the form

437St. Lig., H. Ap., tr. vii., n. 65 ;


"*

Konings, n. 1135, 1322.<3 )

Craiss., n. 1066.

440Cfr. Cone. PI. Bait. II., n. 182-205.

"

fb -- " l88 -

444Craiss., n. 1069. 1070.

443Phillips, Lehrb., p. 289,



Of Bishops. 589

of voluntary contributions, not of taxes or assessments, in the/

strict sense of the term."4

609. II. Contributions in particular. Of the contributions

made to bishops some are ordinary those, namely, which

are given every year, or at least at stated times; others

extraordinary to wit, those given only in special cases or

emergencies. I. The following, chiefly, are the ordinary or

regular contributions : I. The catkedraticum (also synodaticum,

pensio paschalis), which means a fixed sum ot money to be

annually given the ordinary out of the income of the

churches in the diocese."5

It must be given by all churches

in charge of secular priests, but not by those of regulars,

save when they have the care of souls attached. In most

Catholic countries the cathedraticum has gone out of use,

bishops there being supported by salaries Irom the govern^

merit or from other sources:"8

it still exists, in England, in

the Greek Church, in the United States, etc."

7

In this

country it is, in fact, the main support of bishops, as well as

the chief means to defray the expenses incident to the dis

charge of the various episcopal duties. It is made up from

the income of congregations, not out of the salary of pastors

or assistants."8

The amgunt should be determined by the

bishop, with the advice of his clergy.449

2. Procuratio (also

circada, comcstio, aibergarid] i.e., the hospitalitv to be ex

tended to the bishop when he canonically visits the diocese.

3. Contributions for the support of the seminary (scminaris-

ticum,alumnaticuni). 4.

Fees of theepiscopal chancery (Jus

sigilli}. 5. The share falling to bishops from legacies lelt

to a church (quarta mortuana, canonical portio, quarta cpisco-

âlis.^ 6. The fourth part of tithes (quarta decimationuin}^

Vhe two last named are abolished at present. They were

<t4

Walter, Lehrb.. 190.4

Reiff., lib. iii., tit. xxxix,n. 10-18-

<16

Cfr. Craiss.. n. 1072.44T

Walter, . c.

""

Cone. PI. Bait. II., n. 100. Ib&

Phillips, 1. c.. p. 29051

Soglia, vol. ii:, p. 20.45 -

Phillips, Kirchenr., vol. vii., p. 874



390 Of Bishops.

based on the division of ecclesiastical revenues as

made inancient times, by which the bishop received one-fourth of

all ecclesiastical revenues.

HgUr3

The ordinary taxes are subdivided into new and old.

An old or ancient tax (taxa antiqua, census antiquus] is one

which is expressly authorized by the general law of the

Church. The cathedraticum, the seminary contribution,

and the hospitality extended to the bishop when he makesthe visitation of the parish, are, at present, the only ancient

ordinary taxes due to the bishop. A new ordinary tax

(taxa nova) is one which is not expressly authorized by the

general law.4 & 3

HSUr" Now, the sacred canons prescribe that the bishopcannot impose a new ordinary tax at least, not a perpetual

one nor increase the old ones, except by leave from the HolySee. Thus the Council of Lateran (an. 1179) decrees: "

Pro-

hibemus insuper ne ab Episcopis vel aliis Praelatis novi

census imponantur ecclesiis, ncc veteres augeantur. . . Si quis

vero aliter fecerit, irritum quod egerit, habeatur."4M

|3P=>

II. Extraordinary taxes or contributions (Subsidia

charitativa, exactiones extraordinariae]. By these taxes we

mean those which the bishop, for manifest and sufficient

cause, demands in special cases of necessity.455

Now, what

are the conditions uncler which the general law of the Church

or the sacred canons allows the bishop to ask for an extra

ordinary tax or collection? I. There must be a sufficient

cause;such as (a) to defray the expenses of the bishop s

consecration;(b)

of his visit ad limina ;(c]

or attendance at

an oecumenical council.456

2. The cause must be clearly and

manifestly sufficient. For the law expressly requires not

merely that the causa be rationabilis, but also that it be manu

fcsta. In case of doubt, whether the cause is sufficient or

whether the tax is exorbitant, the matter should be settled

453 De Angelis, 1. iii., t. 39, n. I.4

Cap. 7, De Cens. (iii. 39).

465 Reiff., 1. c., n. 19. * Reiff., 1. c., n. 30.



Of Bishops. 391

by recourse to the superior or by arbitrators selected by

consent of both parties.4 "

3.The tax or contribution asked

must always be moderate, and never oppressive or burden

some.458

4. The bishop can insist__irrjon_ an extraordinary

contribution only when his other revenues are insufficient to meet

the special emergency. 5.The consent, or, at least, the advice

of the cathedral chapter is requisite. 6. Where the TaxaInnoc. obtains, the leave of the Holy Sec is also necessary, ex

cept in one case, namely, where a bishop, in a diocese in

which it has been the custom to do so, asks for a contribu

tion to defray the expenses of his consecration. 7. Finally,

the tax should be asked cum charitate, as the law expressly

says.a

In other words, the bishop should ask for it as a vol

untary offering rather than as tax in the strict sense of the

term. Canonists generally remark that at the present day

extraordinary contributions, at least in the form of taxation,

have gone out of use in most countries.

IÎP 610. 111. Contributions<givcn Bishops in the United

States. The Third Plenary Council of Baltimore (n. 20, in fine)

decrees:"

\\,\\\, prachabito Consilio Consultorum, necessarius

erit recursus ad S. Scdem in singulis casibus, in quibus agatur

de imponenda nova taxa pro Episcopo quae excedat limites a

canonibus constitutes." In other words, wherever there is

question of imposing a new tax, collection, or contribution

for the bishop, which goes beyond the rules laid down by

the sacred canons, the bishop is obliged, (a) first to take the

advice of his diocesan consultors,(b)

and then also obtain

leave from the Holy See, and that in each individual case.

|3|F What, then, are the rules enacted by the sacred

canons in regard to new taxes for the bishop ? We have

seen that the canons forbid the bishop (a) to impose a new

ordinary tax, that is, any ordinary tax other than the cathe-

draticum, seminary dues, and the hospitality given at the

episcopal visitation; (b) to increase any of these old taxes

;

*"

Reiff., 1. c., n. 36.468

Cap. Cum Apostolus 6, De Cens. (iii. 39).

Cap. Cum Apostolus 6, cit.; Craiss., n. 1072; Walter, 191.



392 Of Bishops.

(c) to impose an extraordinary tax, except in the manner and

under the conditions already explained above. These con

ditions are given by the cap. 6, De Cens.; the S. C. C. in

Gerund. Feb. 17, 1663 ;the Taxa Innoc. Oct. 8, 1678.

ART. XX.

Prerogatives of Honor of Bishops DC Junbus Honorificis

.Rpiscoporum.

611. 1. Precedence among bishops themselves is regu

lated by the time of their consecration;so that a bishop

who is first consecrated precedes all other bishops conse

crated after him.1 "

Bishops take precedence of apostolic

prothonotaries. In his own diocese a bishop takes precedence even of archbishops, save his own metropolitan; how

ever, as a matter of courtesy, the 5. C. C. recommends that

the diocesan should give the preference to all strange

bishops and archbishops.460 When the bishop visits a churcl

in his diocese he should be received solemnly by the clergy ;

and, if he performs or assists at sacred functions in any part

of his diocese, an elevated seat (thronus) should be prepared

ior him at the Gospel side of the sanctuary; the throne

should be decorated, though iiot^Lu-êd, and surmounted by

a canopy or baldachin.4 & 1

II. The insignia of bishops, be

sides their pontifical robes in general, are chiefly : I, the

mitre (initra, cidara bicornis, infula} ; 2, the crosier (bacillus

pastoralis, peduiri), or pastoral staff, which terminates in a

curve, and is the symbol of his office of shepherd of souls; 3,

the ring, the emblem of his union with his diocese; 4, the

golden pectoral cross ( pcctoralc], which bishops wear con

stantly on their breasts/" III. Privileges of Bishops.

Among others, bishops, i, can take with them on journeys

a .portable altar (altare viaticum, portatile], in order that they

maybe able to

say

Masseverywhere,

even outside of

""

Phillips, 1 c., p. 890.""

Ib., p. 891.*"

Ib., p. 892.

*"

Phillips, Lehrb., pp. 290, 2<ji.



O/ Bishops.

churches. 2. When out of uteir own dioceses they mayeverywhere go to confession to, and be absolved by, their

own priests, as also by approved confessors of other dio

ceses^venjnitjjf the diocese for which these confessors are

approved/" 3. Bishops, moreover, do not, unless expressly

mentioned, incur censures, whether imposed ipso jure or by

judicial sentence (lib homine). 4. A bishop is addressed bythe Pope as Venerabilis l:rater or Fratcrnitas Tua ; by others

as Revendissime ct illustrissime Domine.* In his solemn or

official actsv.g., dispensations, ordinances, and the like he

uses the formula:"5

Ego N. Dei et Apostolicae Sedts gratia (or

misericordia, miseratione] Episcopus ... In this formula

he omits his

familyname and makes use of his

baptismalname only.466

5. He may celebrate Mass and perform

sacred functions in pontificalibus in all, even the exempt and

privileged, churches of his diocese.4 "

483

Phillips, Kirchenr., 1. c., pp. 898, 899.484

Ib., p. 900.484

Ib., p. 901.**

Gerlach, I. c., 220.*"

Craiss., n. 1078



CHAPTER VI.

VARIOUS KINDS OF BISHOPS AND OF PRELATES HAVING

QUASI-EPISCOPAL JURISDICTION.

6 1 2. There are two kinds of assistants or vicegerents of

bishops: Some assist the bishop in the performance of the

functions of the episcopal order v.g.,in conferring sacred-

orders;

others in the exercise of episcopal jurisdiction.

Auxiliary bishops belong to the former, coadjutor bishops

to tne Batter class.

3

ART. 1.

Of Auxiliary Bishops.

613. Auxiliary bishops (episcopi suffraganei, vicarii in pon-

tificalibus) are titular bishops appointedby

the

Holy

See to

assist ordinary bishops, not in the exercise of their jurisdic-

tio* but merely of the ordo episcopalis v.g., to give confirma

tion. We say, I, titular bishops (episcopi titulares, episcopi in

partibus infidelium, episcopi annulares) ;for they are conse

crated with the title of some diocese in the hands of the

infidels.6 We say, 2, appointed by the Holy See.

6

Now, they

1

Walter, 1. c., p. 285. Ib., pp. 287, 288. 3 In German, Weihbischofe.

4

They may, however, be appointed vicars-general, and thus assist the

bishop in the exercise of his jurisdiction (Soglia, vol. ii., p. 28;

cfr. Bened.

XIV., De Syn., lib. xiii.. cap. xiv., n.4\

*

According to the present discipline of the Church, every bishop is placed

over some diocese, governed by him either actually or at least potentially

(Bened. XIV., 1. c., cap. viii., n. 12).

Usually at the request of those bishops who stand in need of them (Phil

lips, Lehrb., p. 325).

394



Quasi-Episcopal Jurisdiction. 395

are appointed only, I, when they are really needed; 2,

where it is customary to have them; 3, on condition that a

proper salary (congrud) be assigned them. The reasons for

which they are usually appointed are, I, where a bishop

does not reside in his see;

2. or cannot perform the episco

pal functions of order on account of old age, infirmity, or

the great extent of his diocese. Auxiliary bishops are not

bound to make the visit ad limina. Their office lapses so

soon as the bishop whom they assist dies or in some other

way relinquishes his see.7

They exist, at present, chiefly in

Prussia, Austria, Spain, etc. The Pope makes use of titular

bishops in the discharge of his apostolic duties.8

ART. II.

Of Coadjutor Bishops.

614, By coadjutors (coadjutores] we mean those who are

appointed by the proper superior to assist bishops in the ad

ministration of the diocese.9

Coadjutors, therefore, must be

distinguished from auxiliary bishops. The latter assist bi

shops in the discharge of the functions of the episcopal

ordo ;10

the former in the exercise of the episcopal jurisdic-

tio.11 How many kinds of coadjutors are there at present ? I.

By reason of their duties (ratione materiae] coadjutors are

divided into temporal (coadjutores in temporatibus tantuwi) and

spiritual (coadjutoresin

spiritualibus, coadjutoresin

spiritualibussimul et temporalibus} The latter are appointed to assist the

bishop in the performance of his spiritual duties, whether of

order or jurisdiction, and not unfrequently also in the man-

7

Soglia, 1. c., p. 29.*

Craiss., n. 1083.

*

Bouix, De Episc., vol. i., p. 498 ; Thomassin., p. ii., 1. ii., c. 1v. seq.10

Walter, p. 286."

Phillips, 1. c., 163.

:1

Leurenius Forum Benef., Tr. de Coadjutoriis, qu. 308. Coloniae Ag.

gripp., 1739.



396 Bishops and Prelates having

agement of Church property. In order to be able to exer-

cise pontificalia, they are consecrated a titular bishop; the

former only in the administration of the temporalities of the

diocese, and consequently they need not be consecrated

bishops.13

2. Again, by reason of their tenure of office

(rationc tcmporis et formac), they are divided into such as

hold office temporarily (coadjutorcs temporarily temporales]

i.e., until the bishop s death or recovery and such as hold

office permanently (coadjutores cum futura successione, cum

jure succcssionis, perpetui} that is, those who are appointed

with the right of succession at the death of the bishop.14

We ask : Are coadjtitorships cum jure prohibited at present?

They are, generally speaking.l

The reasons are : i. They

carrywith them the

appearanceof

hereditarysuccession

18

a thing forbidden by the sacred canons. 2. Because they

contain an expectancy.17 We said above, generally speaking;

for, in certain cases namely, where the urgent necessity or

evident utility of the diocese so demands perpetual coadju

tors may be appointed by the Holy See.

615. Appointment of Coadjutors. 1. To whom belongs the

right of appointment / To the Holy See solely." In certain

cases, however v.g., if the diocese is at a great distance

from the Holy See a bishop who, by reason of age or in

firmity, is unable to discharge his duties, may himself, by

virtue of Papal authority, select a temporary19

coadjutor,

with the advice ai 1 consent, however, of his chapter. Nay,

in case the bishop is insane, the chapter itself, provided two-

"

Bouix, 1. c., p. 498."

Leuren., 1. c., n. 2.6

Salz., vol. ii., p. 170.

16Cone. Trid., sess. xxv., c. vii., d. R.

17

Namely, in this : that they confer upon coadjutors the right to succeed,

ipso jure, at the death of the bishop. As such an expectancy may occasion in

others a desire for the death of the bishop, it is detrimental to ecclesiastical

discipline. Cfr. Phillips, Lehrb., 163 ;Leuren., 1. c., qu. 309.

18

Craiss., n. 1099, noo.

19

Pe:pe fid/ coadjutors must in all rusts be appointed by the Holy See. Cfr.

Bouix, 1. c., p. 500.




thirds of the canons consent, may appoint such coadjutor ;a

report of the whole case should be sent to Rome as soon as

possible. II. For ^vhat causes may coadjutors be appointed?

For these chiefly: i. Chronic or incurable bodily disease

of such nature as to make it impossible for the bishop to per

form his duties v.g., loss of speech, blindness, paralysis, and

the like; 2, old age v.g., age of 60 or 70 ; 3, insanity;

2 &

4,

great negligence on the part of the bishop in the discharge

of his duties.21

Both perpetual and temporary coadjutors

are appointable for the reasons just given. Where a tem

porary coadjutor is all that is needed a perpetual one should

not be appointed. Although the Holy See does not

usually assigna

perpetual, or even a temporary, coadjutorto a bishop against his will, yet it mav do so in fact, has

done so for just cause.22

III. Mode of Appointment in the

United States. The mode which obtained formerly and is

described in the previous editions of this work, has been

changed by the Third Plenary Council of Baltimore, as follows:

When there is question of appointing a coadjutor to a bishop

or archbishop cum jure successionis, the law laid down aboveunder Nos. 345 sq. must be observed. Where, however, a

coadjutor bishop or archbishop is to be appointed who shall

not have the right of succession, it is sufficient for the bishopwho wishes to have such coadjutor to present to the HolySee the person whom he wishes to have appointed.

616. Rights of Coadjutors. -I. The nature of these rights

depends chiefly upon the teno;- of the apostolic letters-patent

by which coadjutors are appointed.3

If. however, the apos

tolic- letters are not sufficient.lv explicit,21

the powers in

question must be determined by the reason which caused

the appointment."

Thus, I. a coadjutor, whether temporaryor permanent, assigned to an insane bishop, obtains complete

administration of the diocese in temporal as well as in

Spiritual matters;"

in fact, such coadjutor has llu- same

soLeuren., ]. c., qu. 339. 340, 341. 342

*Bouix. 1. c., p. 506.

wIb.. p. 507.

2BLeuren., 1. c., qu. 397.

MIb.

(5")

SiSojjlia. vol ii., p 30

* Craiss, n. 1103.



398 Bishops and Prelates having

power as though he were the actual bishop of the diocese

he cannot, however, alienate ecclesiastical goods.28

2. On

Ihe other hand, a coadjutor given to a bishop who is merely

infirm or old can only perform those duties which the bishop

is unable or unwilling to discharge, but not those which the

bishop has reserved to himself. Hence, it may be said that,

as arule, the coadjutor

in thiscase should undertake nothing

without the advice and consent of the bishop.2

But, if the

Sr.ishop objects unreasonably to the exercise of powers by

i he coadjutor, the latter can proceed against the will of the

former;the more prudent course, however, is to refer the

matter to the Holy See.50

II. Salary of Coadjutors. Coad

jutors are entitled to a competent salary (congrua, sustentatio

congrua}. All agree that if the ecclesiastical income of the

bishop is large enough to support himself as well as his co

adjutor, the latter should receive his salary from such in

come.31

The difficulty is : What is to be done in case the

above income is insufficient for both? Should it go to the

bishop or to the coadjutor in such case ? The question is

disputed.32

Practically speaking, however, this difficulty is

of no consequence. For the Holy See, before appointing a

coadjator, usually determines the amount of salary, as well

as tht source whence it is to be derived. If possible, the

coadjuuv:- should have suitable lodgings in the episcopal

residence.33

III. Plow do tJie po^tvers of coadjutors lapse? I.

Those of temporary coadjutors lapse with the death, deposi

tion, or resignation of the -bishop.34

2. Coadjutors cum

futura succession? succeed ipso jure, and without any new

election, so soon36

as the bishopric falls vacant.36

Bishops in

the United States, who hold the Church property of the dio-

"*

Bouix, . c., k->. 509.

29Salz., 1. c., p. 170.

^Bouix, 1. c., pp. 510-51:1.

S1

Ib., p. 516.M

Cfr. Ferraris, V. Coadjutor, n. 31-42.

33

Bouix, 1. c.34

Craiss., n. 1112.

11

Then, also, th $y lay aside the title of their see in partibus, and assumethat of their actual iliocese.

3G

Soglla, vol. i., p. 220.




cese in their own name, should, in their testament, name

their coadjutor if they have one their heir." With coad

jutors may be classed vicars-apostolic who are appointed by

the Holy See to govern a diocese whose bishop is suspend

ed from the exercise of jurisdiction for having abused his

power."

ART. III.

Of Regular Bishops.

617. I. Regulars may be in fact, are sometimes raised

to the episcopal dignity ;the permission, however, of their

superior is requisite.39

A regular bishop is, from the day of

his promotion in Papal Consistory, released merely from the

obligation of observing those rules of his order which are in

compatible with the episcopal office and dignity ;but not

from any of the essential vows.40

Still, he is exempt as to

some of the effects of the vows of obedience and poverty.

Thus, he is no longer bound to obey the prelate of his

order, but only the Sovereign Pontiff. Again, he remains,

it is true, incapable of acquiring property for himself, but he

may freely use temporal goods to support himself in a man

ner befitting his exalted station.41

II. A regular bishop,

moreover, is obligated to wear the habit of his order as to

its color ; the sJiape of his cassock, however, is the same as

that of secularbishops.

42 Hemust,

as arule,

recite the

office or breviary of his diocese, not of his order.43

If he

should resign his episcopal see, or be removed from it, he is

bound to return to his monastery, unless he obtains permis

sion from the Pope to remain out of it.*4

"

Cone. PI. Bait II., n. 189."

Salz., 1. c., p. 171.

"

Bouix, 1. c., p. 496**

Ferraris, V. Episcopus, art. vii., n. i, 2.

"Ib., n. 2. "Ib.,n. 4, 5-4t

lb.,n. 7,

44

Ib., n. 20.



4 Quasi- Episcopal Jurisdiction.

ART. IV.

Of Inferior Prelates.

618. Of pi elates inferior to bishops (praelati inferiores)

i.e., those who, though not clothed with the episcopal char

acter or ordo, are nevertheless vested by the Holy See with

greater or less episcopal r^hts45

there are three classes:

the lowest, the middle, and the highest. 1. The lowest class

consists of those who preside only over such persons, both

lay and ecclesiastical, as are attached or belong to a cer

tain church or monastery.4

General superiors of religions

orders, provincials, and abbots immediately subject to the

Holy See, are prelates of this kind.47

Regular prelates of

this class cannot hear or confer upon others faculties to hear

the confessions of seculars.48 We say, seculars ; for regular

confessors hold immediately of their superiors,4

not of bi

shops, faculties to absolve not only professed (male) mem

bers of their own order, but also novices and secular domes

tics

livingin the

monastery.II. The middle or second class is

made up of those who exercise jurisdiction over the inhabi

tants i.e., over the clergy as well as laitv of a certain dis

trict or territory which is situate in and entirely surrounded by

the diocese of anotlier bishop. Hence they are named praelati

in dioecesi. III. The highest or third kind is composed ot

those who exercise jurisdiction in a district (i.e.,in one or

several cities or places) which is altogether separate from andoutside of any diocese whatever. They are consequently

termed praelati nullius i.e., dioeceseos. They have all the

rights of ordinary bishops, save those which require the

exercise of the ordo episcopalis.

46

Bouix, 1. c.. p 532."

Phillips, Lehrb., . 149

47

Soglia, vol. ii., 18.

<e

Bouix, 1. c., p. 543 ; De Jur. Reg., t. ii., p. 220,**

Komngs n 1305.60 Our Noles, p. 348.

*



CHAPTER VII

OF THE BISHOP S ASSISTANTS ORVICEGERENTS

INTHE EX

ERCISE OF EPISCOPAL JURISDICTION.

619. Under this head we shall briefly treat, I, of vicars-

general ; 2, of archdeacons and arch-priests ; 3, of vicars-

forane or rural deans.

ART. I.

Of Vicars-General.

I. What is meant by a Vicar-General?

620. By a vicar-general (vicarius gcncralis, vicarius in

spiritualibus, officialis) we mean one who is legitimately ap

pointed to exercise, in a general way, episcopal jurisdiction

in the bishop s stead, and in such manner that his acts are

considered the acts of the bishop himself.1 We say, i, who

is legitimately appointed. Now, vicars-general may be ap

pointed not only by bishops, but also by the Pope.2 We

say, 2, to exercise jurisdiction; for vicars-general do not

necessarily act as vicegerents of bishops in regard to the

functions of the ordo episcopalis? We say, 3, in a general

way ; for the jurisdiction of vicars-general should be general,

at least morally speaking.4

For it were a contradiction in

1

Bouix, De Judic., vol. i., p. 358.3

Leuren., For. Benef.Tr. de Vicar Gen., cap. i., qu. 26.*

Craiss., n. 1120.

4 We say, morally speaking. Hence, the jurisdiction of V. G. may be in

tact, is in various matters restricted, both by the jus commune (a/?) and Dy

bishops (ab homine). It cannot, however, be restricted to such an extent as to

make it cease to be morally universal (Bouix, 1. c., pp. 352-358).

-401



402 Of the Bishop s Assistants in the

terms to say that a person is the general vicegerent of an

other, unless he can, at least in some sense, universally take

the place of the person for whom he acts. Hence, a vicar

appointed by the bishop for a certain district only, but not

for the whole diocese, would not be, even though he re~

ceived general powers for such district, canonically speak

ing, a vicarius generalis,but

merelya

delegatus,

and conse

quently appeals from him would have to be made to the

bishop, not to the metropolitan. Now, the jurisdiction of

vicars-general is morally universal (a) as to territory i.e., it

extends to all persons in the diocese; (b)

as to matters. We

say, 4, in the bishop s stead; hence, the jiirisdictioof vicars-,

general, though ordinaria, not delegata? is rightly named

jiirisdictio vicartalis or ministerialist We say, 5, in such manner that his acts, etc.

;that is, these acts have the same effect

in law as if done by the bishop himself. The vicar-general

should reside in the episcopal city.7

621. Is the vicar-general necessarily vested with jurisdic

tion in temporalibus as well as in spiritualibus f We premise :

By a vicarius generalis in temporalibus we mean one whom

the bishop selects to manage the Church property of the

diocese, as also his own income as bishop ; by a vicarius

generalis in spiritualibus, one who is deputed to exercise ec

clesiastical jurisdictionrelative to other matters.

8 We now

answer : The question is controverted. The affirmative, as

held by Ferrarisf

and others, maintains that a vicar-general,

clothed with jurisdictionin spiritualibus only, but not in tem

poralibus, is not, rigorously speaking, the general vicegerent

of the bishop, and, therefore, no vicar-general. The negative,

Cfr. tamen De Camillis, Inst. Jur. Can., vol. i., p. 224. Paris, 1868.

Phillips, Lehrb., p. 333-

If there are two vicars-general, b.oth should reside in the episcopal citt

(in eodcm loco, in quo episcopusstdem habef). Ferraris, V. Vicarius Gen., art

I., n. I, 8, 9 ; cfr, Reiff., lib. i., tit. xxviii , n. 16, 17.

Bouix, 1. c., p. 353* v - Vicarius Gen., art. ii

,n. i



^L of Episcopal Jurisdiction. 403

however, which holds that vicars general need only be

vested with power in spiritualibus, seems more conformable

to the Council of Trent.10

It is universally admitted that a

vicariits gen. in temp, tantnm cannot be properly called vicar-

general, but rather procurator (procurator, oeconomus)" The

Second PI. C. of Bait, recommends that suchprocurators,

dis

tinct from vicars-general proper, be appointed :

"

Valde in

episcopi solatium verteret, si etiam oeconomum seu in tem-

poralibus rebus gerendis procuratorem, laicum sive clericum

(episcopus) nominaret, cujus foret muneris, domus episco-

palis curam in temporalibus habere, necnon et ecclesiarum

bonorumque ecclesiasticorum ad nutum episcopi tempora-lem

gerere administrationem."

12

622. Does the vicar-general receive jurisdiction from the

law or from the bishop ? The more common opinion is that,

although the vicar-general is ordinarily appointed by the bi

shop, he nevertheless holds from the common law(alege, ajure,

rationeofficii sni], and not from the bishop (non ab

episcopo}"

For a person is said to have jurisdiction from the ,aw when,

by virtue of the jus commune, his powers are determinedcerto et fixo inodo, quern episcopus mutare

nequit" Now, the

jurisdiction of vicars-general is so determined; for, as was

seen, his jurisdiction, whether the bishop wills it or not, ex

tends, by virtue of the common law, morally to all matters

and over the entire diocese, and is in this respect not dependent on or alterable by the bishop.

15

Nor can it be objected

that the vicar-general receives jurisdiction through the epis

copal appointment. For this appointment is but the .means

by which the law confers jurisdiction upon him.18

623. Is the jurisdictio of the vicar-general ordinaria or

only dclegata ? It \&jurisdictio ordinaria. This is certain at

"

Craiss., n. 1124.nLeuren., I. c.

( qu. 8, n a.

"

C. PI. Bait.II.,

n.75

; ib., footnote 4.

"

Leuren., 1. c. ( qu. 72.4

Bouix, 1. c., p. 3bo.&

Ib., p . 361.MOur Notes, pp. 70 71



404 Of the Bishop s Assistants in the

present.17

In fact, his jurisdiction is one and the same with

that of the bishop himself; for the tribunal (consistorium^

auditorium} of the vicar-general is considered in ecclesiasti

cal law the tribunal of the bishop ;the person of the vicar-

general, the person of the bishop ;and the sentence pro

nounced by the vicar-general, the sentence of the bishop.

This holds sostrictly

that noappeal

lies from the vicar-

general to the bishop, because it would be appealing from

the same person to the same person.18

Now, the jurisdic

tion of the bishop is ordinary ; hence, that of the vicar-

general is likewise ordinary.19 But it may be objected :.

Ordinary jurisdiction is essentially perpetual ; now, that of

the vicar-general is revocable ad nutuni episcopi ; hence, etc.

We deny the major. Ordinary jurisdiction is that whichis

annexed to some office, but not that which is annexed to it

irrevocably. Thus, Papal legates have ordinary, though

not irrevocable, jurisdiction.20

624. How is the principle to be understood : A sentcntia

vicarii generalis 11011 datnr ad episcopum appcllatio ? This

principle, being unanimously admitted by canonists, is in

controvertible.21

Hence, I, no custom to the contrary can

obtain;

it holds, 2, even though the parties interested should

consent to an appeal to the bishop ; 3, of extra-judicial as

well as judicial appeals; 4, even of cases or matters for which

the vicar-general needs a special commission, provided such

matters are committed to him simultaneously with his ap

pointment as vicar-general. We say, simultaneously, etc.;

for the principle in question does not at least, according to

some extend to matters specially delegated to him after his

appointment to the vicar-generalship (extra coinmissionem

generalem vicariatus) ;because in this case the V. G. pro-

17

Formerly the question was controverted. Bouix, 1. c.

18

Bouix, 1. c., pp. 363, 364.

19

TheV. G. is therefore

properlynamed ordinarius. Ferraris, 1. c., art. i.,

a. 41-43.20

Craiss., n. 1127."

Bouix, 1. c., pp. 3?2-37&.



Exercise of Episcopal Jurisdiction. 405

ceeds as dclegatus, not as ordinaries, and hence an appeal lies

from him to the bishop.2

Observe, that even in cases where

no appeal lies from the vicar-general to the bishop, a peti

tion can always be addressed to him for the remission of the

penalty imposed by his vicar-general.23

The terms vicarius

gcneralis and officialis are,"

de jure communi," synonymous.

In fact, in Italy both these terms are applied to one and the

same person vested with voluntary and contentious jurisdic

tion. But in France and some other countries the officialis

is one who exercises contentious, the vicarius generalis one

who has but voluntary jurisdiction.24

Though, de facto,

both the jurisdictio voluntaria and the jurisdictio contentiosa

may be in fact, are sometimes exercised by two different

officials, yet, de jure, both are essentially exercisable by one

and the same vicar-general.25

2. Appointment of the Vicar-General.

62$. We shall explain, I, the qualifications requisite in a

vicar-general ; 2, by whom he is to be appointed ; 3, whe

ther the bishop is obligated to appoint a vicar-general, and

whether he can have several; 4, in what manner the ap

pointment is to be made. I. Qualifications required in a

Vicar-General. i. The vicar-general should be an ecclesias

tic that is, he should be, at least, tonsured though he need

not be in major or even minor orders.28

2. No ecclesiastic,27

while actually married, can be appointed vicar-general. 3.

58Cfr. Leuren., 1. c., qu. 74. M Bouix, 1. c., p. 376.

14Craiss., n. 1134. In the United States the term officialis is almost un

known, and that of vicar-general is the only one used.

26Bened. XIV., De Syn., 1. iii., c. iii., n. 2.

M The schema of the Vatican Council, "de vicariogeneral ," says : Expedit

etiam ut vicarii generales sacerdotali sint characters insigniti (Martin, Docum.

Cone. Vatic., p. 128).

" We here speak, of course, only of those ecclesiastics who are not yet in

major orders, and who, consequently, are allowed to marry (Bouix. De Jud.,

t. i., pp. 388, 389 .



^06 Of the Bishop s Assistants in the

A vicar-general should be twenty five years of age/ born in

lawful wedlock;he should, moreover, be a doctor in theo

logy or a licentiate in canon law. We ask : Can a religious

be made vicar-general ? It is certain that he cannot with

out the permission of his superior. But is the consent of the

Holy See also required ? Speaking in general, the question

is

disputed.

The affirmative, which seems the moreproba

ble opinion, is based on the argument that no regular can

reside out of his monastery (extra clanstrd) without permis

sion from the Holy See.4

Bouix adds that, at the present

day, it is not unfrequently expedient to select the vicar--

general from some religious community. Can a bishop,

parish priest, rector of a seminary, or relative of the bishop

be named vicar-general? I. A bishop not actually in chargeof a diocese may undoubtedly become the vicar-general of

another bishop, both in pontificalibus and in aliis spiritiialibus.

12. No parish priest, and, in general,30

no clergyman having

Vhe care of souls, especially if it b~ outside the episcopal

pity, can be vicar-general. The , eason is that the duties

respectively of a vicar-general ind pastor are so grave that,

as a rule, they cannot be ^.ultaneously fulfilled in a proper

manner by the same per1

_,n.31

Hence, they are officia incoin-

patibilia. Nevertheless, the appointment of a pastor as

near-general, though illicit, would not seem to be invalid.

3.Rectors of seminaries should not be made vicars-genera ,

** The above schema of the Vatican Council enjoins"

ut illud [i.e., vicarii

fen. officium] ecclesiasticis viris deferatur twn minoribus annis triginta, et in

jure saltern canonico doctoribus, vel alias quantum fieri poterit. idoneis

Martin, 1. c.)a8Clem, ad prioratus (i.e., tit. ix. lib. Hi.)

110 The schema above quoted of the Vatican Council proposes :

"

Et quia

nccesse est ut a fori interni ministerio omnis pellatur suspicio quod ad e\-

tt-rni fori possit adhiberi negotio, nee permittendum sit ut a suo munere quis-

piam abducatur, in quod incumbere totus debet, propterea episcopi canoni-is

pocnitentiariis, parockis, ceterisque curam animation habentibus, itemque obtiec.

tatio.iis vitandae causa, suis fratribus attt nep tihus, vicari* genei-atis munits uon

tommittnnt" ^Majtin. 1. c.) 1

Ferraris V. \ i.arius Gvneralis, art. i.. n. 27




because it is ordinarily impossible for them to properly dis

charge their duties toward the seminary without neglecting

those of the vicar-generalship. 4. Nor should relatives

(v.g., uncle, nephew, brother) of the bishop be named vicars-

general.32

Can natives of the episcopal city or of the diocese

be made vicars-general ? According to Cardinal de Luca,

the bishop is bound to name as his vicar-general a stranger

(extents] that is, one who neither belongs to the clergy of

his diocese nor is a citizen of the episcopal city. Bouix

goes so far as to say that, de jure communi, it is unlawful for

/a bishop to appoint an ecclesiastic of his own diocese to the

I vicar-generalship, save by Papal dispensation.33

The jus

commune in this respect still obtains, and should consequent

ly be observed, except, perhaps, in some countries where it

may have been abrogated by contrary custom lawfully pre

scribed.34

However, the appointment of a diocesan ecclesi

astic, though illicit, is valid. Customs in the United States.

Generally pastors, especially those of cathedrals, and some

times rectors of seminaries, owing chiefly to the scarcity of

priests, are appointed vicars-general. As a rule, the vicar-

general is selected from among the diocesan clergy.

626. II. Who lias the power of appointment ? I. Every

bishop, no matter whether his diocese be large or small, can

appoint a vicar-general, and that, at present, without the

consent or even advice of hischapter."

2. The administra

tor of a vacant diocese, as also the administrator of a dio

cese whose bishop is still living, may appoint a vicar-general

for himself, because he is possessed of the ordinary jurisdic

tion of the bishop.30

3. The Holy See may in fact, some

times does appoint a vicar-general v.g., where the bishop,

though unable alone to govern hrs diocese, because of its ex

tent and the like, nevertheless neglects to name a vicar-

"

Craiss., n. 1143. Cf. S. Thorn., 2, 2, q. 63 art. 2, ad. i.

18

Cfr. Leuren., For. Benef. Tr. de Vicario Gen. Episcopi, c. i., qu. 47.**

Ferraris, 1. c., n. 34.30

Leuren., 1. c.. qu. 20, 21."

Ib., qu. 24



408 Of the Bishop s Assistants in t?ir

general. 4. In no case can the metropolitan aptimn* ..m

. vicar-general of asuffragan." A bishop elect

38

cannot ~p-/ point a vicar-general before he has taken possession of his

Isee

;he may, however, make the appointment prior to his

consecration, provided he has taken possession of his see-that is, provided he has actually exhibited the bulls of his

elevation. III. Obligation of appointing a Vicar-General. Is

a bishop obligated to have a vicar-general ? The questionis controverted. According to Bouix and others, a bishop,

39

if he resides in his diocese, is not bound to appoint a vicar-

general unless the Holy See commands him to do so. Wesay, if he resides in his diocese; for if he were absent from

his see, he would be obliged to name a vicar-general, in

order to ensure unity of government during his absence.

Can the bishop have several vicars-general? i. It is cer

tain that no bishop, however extensive his diocese may be,

is obliged to have two or more vicars-general.40

The only

exception occurs in dioceses where the diocesans are of dif

ferent languages and rites v.g., Greek and Latin rites;41

for, in this case, the bishop is bound to appoint a vicar-

general, and that a

bishop,for those of a different rite.

42

2.

lit is even controverted whether a bishop can, as a rule, name

jseveralvicars-general. The affirmative to wit, that seve-

-al vicars-general,43

each having jurisdiction in solidum, may

87

Bouix, 1.c., p. 405.

38Even though he has already received the bulls (Ferraris, 1.

c., n. 17).89

Especially if he is a canonist and has a small diocese (Phillips, Lehrb.,

P- 333)-

40 The schema, above quoted, of the Vatican Council says :

"

Quibus vero in

dioecesibus plures vicarii generales deputao solent, hi numerum duorum i<el

ttium non excedant, omnesque in solidum teu aeque principaliter constituantur, ne

forte quae ab eorum singulis provisa gestaque fuerint, viribus careant. Vica-

riorum autem generalium, quos honorarios vocant, nomen et usus prorsusaboleatur" (Martin, 1. c.)

41

Supra, n. 541. Craiss., n. 1156.43

In case several are named, all of them must reside in the episcopal citv.

Ferraris, 1. c , n. y.



Exercise of Episcopal Jiinsdiction. 409

be appointed is the more probable opinion. 3. We said, as

a rule ; for it is certain that a bishop can constitute several

vicars-general, i, where it is customary to do so; 2, where

two dioceses, having been united into one (dioeceses princi-

paliter unitae), are governed by the same bishop.44

In the

latter case, the bishop may have a vicar-general in each dio

cese , nay, if the two dioceses arc at a considerable distance

from each other, he is bound to have one in the diocese

where he does not reside. IV. Mode of Appointment. The

vicar-general may be validly constituted orally, and it is not

absolutely necessary that his appointment should be made

in writing. We say, not absolutely ; because letters of ap

pointment are required in order to prove the authority of

the vicar-general, if called in question. Hence, it is ad

visable that he be always appointed by letters-patent (scrip,

tura publica et solemnis) that is, by an official instrument

not merely by private letters.4 &

3. Powers of the Vicar-General.

627. The vicar-general, by virtue ofhis

appointment (et

ipso quod constituatur V. G.}, can, as a rule,46

do what the

bishop himself can do de jure ordinario.^ For, as was seen

his jurisdiction is the same as that of the bishop ; per se,

therefore it is in every respect as great, as unlimited, and as

universal as is the ordinary jurisdiction of the bishop him

self." We say,/^r se; that is, unless restricted, i, by eccle

siastical law; 2, or by the bishop. Hence, in order to

ascertain the extent of the powers vested in the vicar-gene

ral by his very appointment, the question is not so much

what powers has he as what powers has he not. Once we

have learned what restrictions have been placed on his

jurisdiction, either by canon law or by the bishop, and, con-

44

Leuren., 1. c., qu. 31.

46

Ib., qu. 35.

4*

Ferraris, 1. c., art. ii., n. 3.

47

Leuren., 1. c., c. iii., qu. 96, 98.<s

Bouix, De Judic. Eccl., tr. i., p 414.



4io Of the Bishop s Assistants in the

sequently, what he cannot do, we know by inference what

he can do to wit : He can do generally what the bishop

himself can do. Hence we ask : In what things or how far

has canon law restricted the jurisdiction vested in the vicar-

general by virtue of his appointment (vi officii sibi generaiiter

comnnssi) Chiefly thus: I, by prohibiting him from act

ing validly in certain cases without a special mandate from

the bishop ; 2, by enacting that he cannot proceed in some

things even with a special mandate from the bishop. I.

Chief Cases where the Vicar-General cannot act validly save by

a Special Mandate from the Bishop. i. The vicar-general,.

even though he be a bishop, cannot perform actions of the

ordo episcopalis v.g., blessing holy oils, giving confirmation,

consecratingchurches or

conferringorders. Nor can he

grant letters dimissory for the reception of orders, except

when the bishop is in remotis regionibus and will not return

for a long time. 2. /// materia beneficiali ; he cannot confer

benefices, although, according to some, he can appoint to

parishes those who, having made the concursns, are found to

be the personae digniores. In the United States, however,

according to Kenrick,61

vicars-general (except the bishop

disposes otherwise) can give priests faculties, together with

the care of souls, as also revoke them for just reasons.02 He

cannot erect, unite, or divide benefices or parishes,63

nor can

he give another bishop permission to exercise pontificalia in

the diocese. 3. In regard to the jnrisdictio contcntiosa, he

cannot take cognizance of the graver causes or crimes of

ecclesiastics, and consequently he cannot depose them ab

ordinc or a bencficio (v.g., parish). 4. Nor can he absolve

from suspensions incurred ex dclicto occidto, nor from other

cases reserved to the Holy See ; nor from sins reserved to

the bishop solely?* either by the bishop himself or by ecclesi-


*"

Cfr. Craiss., n. 1162."

Tr. viii n. 4*

63

Konings,n.

1146(z/.

"

i-errans, I. c., n. 29, 34, 28.

MLeuren., 1. c

, qu. 130, 131.



Exercise of Episcopal Jurisdiction. 41 1

astical law"

(v.g., in the C. Ap. Sedis of Pope Pius IX. or in

the Council of Trent, sess. xxiv., c. vi., d. R.) 5. General

ly speaking, he cannot dispose of matters of a grave charac

ter (causae arduae, res graves}. 6. Nor can he do those

things which fall under the bishop s jurisdiction, not de jure

communi or dejure ordinario, but by virtue of the jus speciale.

Thus, vicars-general in the United States can exercise the

ordinary, but not, except by special mandate, the extraordi

nary, faculties of our bishops. II. Chief Cases where the

Vicar-General cannot proceed validly, even with a Special Man

date from the Bishop. i. The bishop cannot confer upon his

vicar-general power to absolve from occult heresy. Pro

testants, however, who apply for admission into the Church,

may be absolved by the bishop or his delegatus ;"

the reason

is that, by applying for admission into the Church, their

haeresis becomes deducta adforum episcopi, and thus ceases to

be occult." 2. The bishop cannot empower his vicar-gene

ral (unless he be a bishop) to perform those actions for

which, jure divino, the ordo episcopalis is required v.g., the

conferring of major orders;neither can he, except by leave

from Rome, authorize his vicar-general (who is not a bishop)

to do those things for which the ordo episcopalis is necessary

only jure ecclesiastico v.g., to perform the blessing of ab

bots and blessings in general, where the holy oils are

used." Bishops in the United States have power from

the Holy See to authorize not only vicars-general, but

also otherpriests,

to consecrate chalices and altar-stones,

to bless bells,* sacred vestments, to absolve from occult

heresy. Moreover, the facilitates extr. D. and E. may be

delegated81

by our bishops to two or three worthy priests

in remotioribus locis dioecesis, as also to vicars -general

16

Konings, n. 1146 (6).


wSupra, n. 580

11Craiss., n. 1168.

MLeuren., 1. c., qu. 113.

** Fac. Extr. C., n. 6, 12; Fac. form, i., n. i?.

w " Pro aliquo tamen numero casuum ur



412 Of tJic Bishop s Assistants 211 the

in case bishops are to be absent more than a day from then

residence.82

628. I. To what matters does the ordinary jurisdiction

of vicars-general chiefly extend without any special mandate

from the bishop ? We premise : The jurisdiction of vicars-

general is not so extensive as that of vicars-capitular, sede

vacante (with us, administrators) ;for the latter can do many

things which the former cannot, save by special mandate."

We now answer: I. The vicar general has the right to con

cur cumulatively with all the pastors of the diocese in the

administration of the sacraments and in preaching.04

2. He

may, by virtue of his appointment, hear sacramental confes

sions and also give other priests faculties to do so.65

3. He

can appoint in his stead a delcgatus for one or several mat

ters, but not64

quoad universitatem causarum. 4. He can

compel pastors to take as many assistants as are necessarv

for the parish. 5. He may dispense from all the proclama

tions of the banns.67

II. Is the vicar-generalship an ecclesi

astical dignity ? By a dignitas, in the strict sense, is not

meant every office to which precedence and jurisdiction are

attached, butonly

an office that is

permanently

vested in a

person, and to which precedence and jurisdiction are an

nexed. In a broad sense, a dignitas is an office ad nutum re-

vocabile, having jurisdiction and precedence attached. As

the vicar-general is removable ad nutinn cpiscopi, he is an

ecclesiastical dignitary only in a broad sense.6 &

Yicurs-

^cncral arc also accounted by some //v?r/ ,/; minorcs.

629. How does the vicar-general s jurisdiction expire ?

Chiefly in three ways :

69I. By will of the bishop namely, by

his removing the vicar-general. A vicar-general being re-

MFac. Extr. D., n. 8

;Fac. Extr. E., n. 4, ap. our Notes, pp. 473, 475.

41Leuren., 1. c., qu. 97.

*

Ib., qu ill,

Ferraris, 1. c., art. ii., n. n, 12, 13.

**

Except by special mandate (cfr. Craiss.,n. 1176).

*T Leuren., 1. c., qu. 161.&

Bouix, 1. c., p. 440."

Soglia, t. ii., p. 27




vocabilis ad nutum episcopi may -be validly removed without

cause, but nol licitly, except ex gravi et justa causa ; and if

removed: without such cause, he may be reinstated by the

Holy See.70

II. By will of the vicar-general himself that is,

by his express or tacit resignation. He resigns tacitly by

leaving the diocese with the intention of not returning. III.

By the lapse of the bishop s jurisdiction. Now, the bishop loses

jurisdiction, i, by death. We observe, however, the vicar-

general s jurisdiction expires at the bishop s death only in

regard to matters delegated71

to him under his official title

only v.g., thus :

" Committimus hanc causam vicario gcnerali

Neo-Eboracensi," . . . but not in regard to matters com

mitted to him personally or under his baptismal or family

name v.g., thus :

"

Committimus hanc causam Jacobo Mur

phy, vicario general Neo-Eboracensi." For, respecting the

latter cases, he retains jurisdiction even after the bishop s

death, or after being removed from the vicar-generalship."

The bishop loses jurisdiction, 2, by resigning his see; 3, by

being transferred to another bishopric ; 4, when taken cap

tive (namely, by pagans, heretics, and schismatics) ; 5, by

being excommunicated, suspended, or interdicted; 6, by

being deposed. In whatever manner, therefore, the bi

shop s jurisdiction lapses, that of the vicar-general except,

as stated, in cases delegated to him personally also expires,

and that even in regard to matters already taken in hand (re

non amplius Integra) by him.73

Herein a vicar-general differs

from a mere delcgatus ; for the latter s jurisdiction expires at

the death of the persona delegans, only in regard to matters

not yet engaged in (re adliuc Integra), but not in respect to

things already undertaken.

630.- -I. By whom is the salary of the vicar-general to

be paid ? I. Dejure communi, by the bishop, out of his own

7*Ferraris, 1. c., art. iii., n. 29.

"

Whether by the bishop or the Holy See. Crais?., n. 1181.

nLeuren., 1. c., qu. 2g8.

7S

Soglia, 1. c., p. 3*



4 [ 4 Of the Bishop s Assistants in t/ic

income (e* sua camera]. 1 *

The salary clue the vicar-generalai the time of the bishop s death should be paid him by the

vicar-capitular out of the revenues of the vacant see. 2. In

France and some other countries he is paid by the government. 3. In the United States vicars-general are usually

also pastors, and do not, as a rule, receive a special salary

for the discharge of their duties as vicars- general. II. Whenare the excesses and the ignorance of a vicar general im-

putable to the bishop? i. The bishop is not responsible foj

delinquencies of which his vicar-general is guilty extraoffi-

cium suum that is, as a private person.76

2. Excesses ot

mistakes committed by the vicar-general in his official capa

city i.e., in the exercise of his authority are to be im

putedto the

bishopif he

appointsor retains in office a vicar-

general whose bad character or ignorance is or should be

known to him; nay, a bishop, in this case, is even bound to

make restitution for injuries caused by unjust and uncanoni-

cal acts of his vicar-general.76

For he is bound to appoint

a virtuous as well as a learned and experienced vicar-gene

ral. III. By whom is the vicar-general punishable for his

offences ? His offences relate either to his private or official

conduct. I. If he commits crimes as a private person, he is

punishable, like others, by his bishop, not by the metropoli

tan, save on appeal.77

2. But if he is delinquent in the dis

charge of his duties as vicar-general (in officio ctjurisdictione]

he is to be punished, according to some, by the metropoli

tan, not by his bishop ;

78

according to others, by the bishop,

unless the latter is an accomplice of the vicar-general.

74

Craiss., n. 1183."

Leuren., 1. c., qu. 301.7e

Bouix, 1. c., pp. 445, 448.n

Leuren., 1. c., qu. 300, n. j, a, j,

nBouix, 1. c., p. 453.




ART. II.

Of Archdeacons and Arch-Priests.

631. As both these dignities have substantially ceased

to exist, we shall but briefly refer to them. I. Archdeacons.

1. Their officein former times. Archdeacons (archidiaconi)

were formerly those who assisted the bishop in the exercise

of his external jurisdiction and in the administration of the

diocese.79

Their power was similar to that of vicars-general

at the present day, by whom they were superseded. Their

jurisdiction was ordinary, and, though inferior, to, was yet

independent of and distinct from, that of the bishop.80

They

were not removable ad nutum episcopi. Down to the thir

teenth century their authority steadily increased. Not un-

frequently, however, they abused their power, which was, in

consequence, greatly diminished by the Council of Trent.81

2. Rights of Archdeacons at present. Their office is almost

entirely abolished, being reduced to assisting the bishop at

ordinations andpresenting

the ordinandi.

Hence,where

archdeacons still exist, they retain merely the name, not the

power formerly attached to their office. Vicars-general

now take their place. II. Arch-Priests. I. Their officeor

power in former times. The arch-priest (archi-presbyter) oc

cupied the chief place among priests. It was his duty to

assist the bishop in those things which related to the sacra

ministeria (i.e., the administration of the sacraments) and the

forum internum. The chief difference, therefore, between

arch-priests and archdeacons was this : The former had

jurisdiction in foro interno only ;the latter in foro externo.

There were two kinds of arch-priests : namely, the archi-

presbyteri urbani that is, those who lived in the episcopal

"

Soglia t i., pp. 22, 23. "Phillips, Lehrb., p. 329.1

Sess. XXK., c. v., xii.. xx., d R



4i 6 Of the Bishop s Assistants in the

city or at the cathedral ; and the archi-presbyteri ruralcs

namely, those who were appointed for country districts."

2. Rights of Arch-Priests at present. Their powers met with

the same fate as those of archdeacons. Hence, the rights

formerly possessed by arch-priests are now almost every

where extinct. The archi-presbyteri urbani have been super

seded by the auxiliary bishops of the present day ;the arcJii-

presbyteri rurales by the present vicarii foranei or rural

deans/8

ART. III.

Rural Deans.

632. By rural deans (decani rtirales, vicarii foranei} we

mean those pastors who are permanently deputed by the

bishop to expedite matters of minor importance in certain

districts of the diocese.84 We say, permanent ) ; thus, we

distinguish them from those delegati who are delegated

either for a particular case only, or but temporarily for a

certain kind of matters. Rural deans are also named vicarii

foranei because they are appointed for districts situate extra

fores I.e., outside the city in which the bishop resides.85

They may be chosen by the pastors of their district or deca-

nia; this election is, of course, subject to the approval of

the bishop. Their chief duties, especially in the United

States, are : To take care of sick and attend to the burial of

deceased priests in their district;

to preside in theological

conferences, settle minor disputes, and, in general, to inform

the bishop once a year, or oftener, of all important ecclesias

tical affairs relating to their district.87

The jurisdiction of

wDevoti, lib. i., tit. iii., n. 75.

& 3

Soglia, 1. c. , p. 23.

84

Phillips, 1. c., p. 340.es

Leuren., 1. c.. qu. n, is.

**

Except where custom has reserved this right to the bishop (Phillips, I.e..

p. 341).& 7Cone. PI. Bait. II., n. 74.




rural deans is delegated ; though it can scarcely be said

that, at present, they have any real jurisdiction at all. It

is allowed to appeal from them to the bishop, or, sede

vacante, to the capitular vicar or administrator.88

Finally,

they are removable ad nutum either by the bishop or vicar-

capitular.

See also the Third Plenary Council of Baltimore (n. 27) in

regard to the appointment and duties of Rural deans in the

United States.

88Ferraris, V. Vicar. Gen., art. iv., n. 19, 20.



CHAPTER VIII.

ADMINISTRATION OF VACANT DIOCESES" DE ADMINISTRA-

TIONE DIOECESIS, SEDE VACANTE."

633. We shall treat, i, of the government of a diocese,

sede vacante, as laid down by the jus commune, and as existing

in countries where dioceses are fully organized, and where,

consequently, there are chapters. 2. Next we shall discuss

the manner in which vacant dioceses are

governed

in the

United States.

ART. I.

Administration of Vacant Dioceses in Countries where the"

Jus

Commune"

obtains.

I. Upon whom the Government of a Diocese,"

sede vacante"

devolves.

634. In how many ways may an episcopal see fall vacant ?

In three : Proprie, quasi, and interpretative.1

I. A see falls

vacant, in the proper or strict sense of the term (sedes vacat

proprie, sede proprie vacante], \, when the bishop dies; 2, or

is transferred to another see; 3, when he resigns ; 4, or is

deposed ; 5, or has become notoric haereticus. II. A see bo

comes quasi-vacant (sedcs quasi vacat, sede impeditd] when, by

reason of some hindrance, its bishop is prevented from ad

ministering it. A diocese is said to be quasi-vacant, i, if

the bishop is made captive, or, rather, reduced to slavery b^

1

Craiss., n. 1216

418



Administration of Vacant Dioceses. 419

pagans and schismatics.2 Two exceptions, however, are to

be admitted :(a) if the bishop, notwithstanding his permar

nent captivity or slavery, is able to communicate by letter

with his chapter ;(<)

if he has left a vicar-general in the dio

cese. We said, by pagans and schismatics ; for if a bishop is

imprisoned or banished by the civil government to which he

is subject, his see does not become even quasi-vacant,3

but is

to be governed during his absence by the vicar-general. In

lact, to declare a see vacant whose bishop is exiled or im

prisoned for defending the rights of the Church would be,

as Pope Gregory XVI. wrote to the chapter of Cologne, to

connive at the unjust measures of the civil power. 2. A see,

moreover,becomes

quasi-vacantif the

bishopis far

fromhis

diocese (in remotis), and his vicar-general meanwhile dies or

leaves the diocese, is ejected by the civil government, or is

in some other way prevented from acting as vicar-general ;

if, however, the bishop has provided for these contingencies,

the see does not fall vacant.4

III. A see falls vacant inter

pretative when its bishop becomes excommunicated, sus

pended, or in/tabilis.

3

V.g., Turks and Saracens (Craiss., n. 1217) ;also heretics. Cfr. Ferraris, V

Capitulum, art. iii., n. 32.

3 Thus the Holy See, in 1838, decided, in th* case of Droste de Vischering

Archbishop of Cologne, who had been imprisoned by the Prussian Govern

ment in 1837 ;as also in the case of the Neapolitan bishops driven from their

sees by the Sardinian Government. See Decretum S. C. Episc. et Regul., May

3, 1862, de Nullitate Electionis Vicarii Capit. Vivente Episcopo (ap. Phillips,

Lehrb., p. 322). This decree was sent to //the chapters, to serve as a rule of

action for the future in all similar cases. The schema of the Vatican Council,

De Sed. Ep. Vac., proposes to confirm this decree in these words : Sede vero

per episcopi captivitatem vel relegationem aut exilium impedita, illius regimen

penes episcopi virarium (generaZem), vel quemlibet alium virmn eccltsiastitum ab

episcopo delegatum remaneaf, donee aliter ab hac Sede Apostolica provideatirr.

lis autem deficientibus vel impeditis, capitulares vicarium constituent, totiusque

rei eventumquamprimum

adejusdem

S. Sed is notitiam deferent,reccpturi

humiliter, et efficaciter impleturi quod per ipsam contigerit ordinari (Martin,

Docum. p 134).4Leuren., 1. c., qu. 447 n. 3.



420 Administration of Vacant Dioceses.

635. I. To whom belongs, de jure communi, the adminis

tration of a diocese, sede vacante ? 1. If a diocese is vacant

in the strict sense of the term (sede proprie vacante\ it is cer

tain that its administration, for the whole time of the va

cancy,6

belongs de jure communi, not merely by privilege or

delegation, to the cathedral chapter. 2. If it falls quasi-

vacant (sede quasi vacante\it is controverted whether or not

its administration devolves upon the chapter. According to

some, it does in all cases of quasi-vacancy.6

According to

others, a distinction must be made, as follows : If a diocese

becomes quasi-vacant by reason of its bishop being made a

captive or slave by pagans or schismatics, the administration

belongs to the chapter, though only provisionally that is,

until the Holy See, having been duly informed by the chap

ter, either confirms the vicarius appointed by the chapter or

names a vicarius apostolicus.In all other cases of quasi-

vacancy, Phillips7

contends, the duty of the chapter con

sists merely in reporting without delay the state of affairs to

the Holy See, by whom extraordinary provisions, if neces

sary, are to be made. 3. It is certain that if a see falls

vacant interpretative, its administration does not devolve

upon the chapter, but recourse must be had to the Holy

See. II. Can the chapter itself i.e., in a body or collec

tively administer a diocese during its vacancy? At pre

sent8

it cannot, but is bound, v/ithin eight days after it is

informed of the vacancy, to elect a vicar (vicarius capitularis,

vicarius capituli), who administers the diocese in the name of

the chapter. Should it neglect doing so, this duty will de-

6

Bouix, De Capit., p. 482.

8Leuren., 1. c., qu. 447. This opinion seems untenable at present, as is

evident from the above decree of the S. C. Episc., issued in 1862 (cfr. schema

" De Sed. Ep. Vac.,"c. ii., of the Vatican Council).

L. c., 161;

cfr. Ferraris, i. c., n. tf.

1

Formerly it could do so (Leuren., 1. c., qu. 467).




volve on the metropolitan.9

The administration, therefore,

ot a vacant diocese belongs no longer, as formerly except

for the first eight days of the vacancy to the entire chapter,

but is to be committed to one person, the vicarius capituli.

We say, except for the first eight days ; for, during this time,

the administration still belongs to the whole chapter in

solidum i.e., collectively but not to the prima digmtas."

Besides choosing a vicar-capitular for the exercise of the

jurisdictio ordinaria episcopalis i.e., for the administration

proper11

the chapter is bound to appoint one or more pro

curators (peconomus), whose duty it is to take care of the

property and revenues of the vacant diocese. In the United

States no such procurators or administrators of the temporalities of vacant dioceses are appointed. Vacant sees are

usually governed, with us, both in teinporalibus and spiritnali-

biis, by one and the same administrator. III. Can the chap

ter appoint several vicars-capitular ? At the present day but

one capitular vicar can be chosen.12

Nevertheless, the cus

tom, if legitimately prescribed, of electing two or more, maybe tolerated.

Only

a

competent person (idoneus)

should be

appointed vicar-capitular ;he should, if possible, be a doctor

in canon law, not merely in theology.18 He cannot be ap

pointed by the chapter, only for a limited time v.g., for

three months; for, once appointed, he remains in office so

long as the vacancy lasts.14

Nor is he removable by the

chapter. He should, if practicable, be selected from amongthe

canons of the cathedral chapter. Moreover, he shouldbe elected by the chapter when capitularly assembled

;

"

secret suffrage is not essential, though advisable. A majori

ty vote is requisite to elect the vicar;a mere plurality of

votes is insufficient. He could, however, be validly elected

Cone. Trid., sess. xxiv., c. xvi., d. R.10

Ferraris, 1. c., n. 30.

11

Phillips, 1. c., p. 317.ia

Leuren., 1. c., qu. 547, n.3.

"

Craiss., n. 1232."

Bouix, 1. c., p. 510.15

Ferraris, 1. c., n. 39.



422 Administration of Vacant Diocese*.

by several canons nay, even by one in case the rest, -v.g.,

had died or become disqualified to vote.1

2. Of the Powers Vested in the Chapter or Vicar-Capitular,"

Sede Vacante"

636. I. Rights of CJiapters and Vicars-Capitular in gen

eral.i.

The entire government of the diocese, and the

vj\\Q>\QJurisdictioordinaria of the bishop, both in temporalibus

and in spiritualibus, pass to the chapter, sede vacante, and maybe exercised by it, save in regard to matters excepted by the

Jus commune or specially withheld by the Roman Pontiff.17

Now, i\\\sjurisdictio ordinaria episcopalis, as exercised by the

chapter for the first eight days of the vacancy, passes en

tirely18

to the vicar-capitular as soon as he is properly

chosen. We say, entirely ; for it becomes, at least as far as

its exercise is concerned, vested solely and exclusively in the

vicar-capitular,19

not jointly in him and the chapter. Hence,

it is not necessary that we should, as some canonists do,

treat separately of the rights of the chapter and those of the

vicar-capitular ;for whatever is said of the one is equally

applicable to the other. 2. Again, jurisdiction is divided, I,

into contentious and voluntary; 2, into jurisdiction ex jure

communi and ex jure speciali ; 3, into jurisdiction exjure and

ex consuetudine ; 4, into ordinary and delegated ; 5, into juris

diction respecting matters that do or do not require the

ordo cpiscopalis Now, the chapter or vicar-capitular, speak

ing in general, succeeds, i, to the entire contentious, and

probably also voluntary, jurisdiction ; 2, to all those rights

18

Craiss., n. 1248."

Leuren., 1. c., qu. 457.

18

Bouix, 1. c., p. 550. The schema of the Vatican Council," De Sed. Ep.

Vac., c. i.,"also expresses this :

"

In vicario autem constituendo nullam sibi

jurisdictianis partem capitulum retinere quomodocunque possil" (Martin, 1. c.,

P- I3-P-

19 He becomes, therefore, so to say, the bishop of the diocese for the time

being (Phillips, 1. c., p. 318).20Bouix, 1. c., p. 556




which are, either by privilege or custom, permanently at

tached, not to the person of the bishop, but to the see; 3, to

thejurisdictio delegata of the bishop, in those cases where the

bishop is authorized by the Council of Trent to act"

ctiam

tanquam Sedis Apostolicae delegatus,"but not where he

acts simply tanquam, etc.; 4, finally,

neither chapters nor

vicars-capitular can perform acts of the ordo cpiscopalis i.e.,

functions for which the ordo episcopalis is required although

they may authorize or invite othei bishops to do so in the

vacant diocese.

637. II. Rights of Chapters and Vicars-Capitular in par-

tici4lar. I. Vicars-capitular can, i, enact statutes for the

entire diocese and enforce them by penalties ;

2>

2, inflict all

the censures which the deceased bishop could inflict;

a

hence, they can excommunicate, suspend ab officio and a

beneficio ; 3, absolve from all censures from which the bishop

himself could absolve;

"

hence, they can absolve from txcom-

munications, whether imposed a jure (provided they are not

reserved to the Holy See) .., for striking an ecclesiastic

or ab homine v.g., by the deceased bishop or his vicar-gen

eral; 4, as a matter of course, they can absolve from censures

inflicted by themselves or by chapters ; 5, they can absolve in

foro conscientiae from all occult cases reserved simpliciter to

the Holy See nay, from all censures whatever in the case

of those who cannot recur to the Holy See for absolution;

M

6, the) can also absolve from all cases reserved to the

bishop;

/,

andgive

faculties to hear confessions.25

I.I. What

are the chief things the chapter or vicar-capitular cannot do,

sede vacante ? It is a general rule that, sede vacante, no inno

vations should be made which would in any way be pre

judicial to the rights of the future bishop.28

In fact, the

very nature of an interregnum demands that those who

51 Leuren., l. c., qu. 470.OT

Ib., qu. 475.

& 3

Ib , qu. 476.

14Ib., qu. 476, 477.

MIb., qu. 483.

MPhillips. 1 c., p. 319.




govern during the vacancy should make no innovations

whatever, but merely expedite such matters as do not admit

of delay. Hence, vicars-capitular, i, cannot appoint to va

cant parishes,27

though they can hold the concursus, select the

persona dignior and present him to the Pope, to whom alone

the appointment belongs during the vacancy of the see;

28

2,

nor can they, during the first year of the vacancy, give litte-

ras dimissorias ad ordines (i.e., letters dimissory enabling ec

clesiastics to receive orders from bishops of other dioceses),

except to ecclesiastics who are obliged29

to receive orders

(clericis arctatis}. When the see has been vacant one year,

letters dimissory may be given to all ecclesiastics.30

3.

They may, however, according to the more common

opinion, giveexeats

(litter

ye

pycnrporationis] at any timeduring the vacancy, provided there be a causa gravis?

1

27 The schema, above quoted (c. ii.), of the Vatican Council proposed :

" Cum experientia doceat, quosdam vicarii munus adeptos ambitiosa sollici-

tudine multa properanter disponere, futuri episcopi consilia ac regimen prae-

occupantes, quandoque etiamhujus Ap. Sedis jura invadentes, nos, sacro ap-

probante concilio, vicarii cap. facultates, intra sacrorum canonum limites

omnino contineri jubemus. Quapropter invectam quibusdam in locis con-

suetudinem ut liberae collationis beneficia a vicario conferantur, tolerandam hand

esst declaranius. Quod si beneficia hujusmodi animarum curam adnexam

habeant, vicarii erit, deputato statim oeconomo, concursum indicere, et illiua

acta ad hanc Apost. Sedem transmittere, ad quam collatio seu provisio perti-

net, nisi aliter ab eadem pro locorum, temporum, ac personarum adjunctis

provisum fuerit" (Martin, 1. c.)28

Leuren., 1. c., qu. 529, 530.

29

Namely, on account of a benefice or parish to which they have been or are

to be appointed (Soglia,1.

c., p. 38).80 The above schema of the Vatican Council proposed that this should be

done only with the consent of the chapter. It says: "In dimissoriis ad or

dines a vicario post annum vacationis concedendis capituli semper consensus pet

secreta suffragia requiratur et accedat ; Us vero qui a proptio episcopo rejccti fuennt

nunqnam concedantur" (Martin, 1. c.)

81Craiss., n. 1270. The above schema of the Vatican Council proposed to

revoke this right. It says:" Alienum clericum clero dioecesis adscribere.

vel proprium ex eo dimittere vicarius nequeat, nisi ab hac Sede Apost. faculta

tem obtinuerit" (Martin, 1. c.)




Vicars-capitular are entitled to a competent salary for their

services as vicars-capitular, even though they have an in

come from other sources v.g., from canonships. This

salary may be made up, v.g., from chancery fees (ex sigillo]

and, in general, from all revenues, no matter of what kind,

which would belong to the bishop if the see were not

vacant." If not paid by the chapter, it must be paid by the

bishop-elect out of the episcopal income which accrued

during the vacancy. At the present day the jurisdiction of

vicars-capitular lapses as soon as the bishop-elect has ex

hibited the bulls of his appointmen"

ART. II.

Administration of Vacant Diocesesin

the United States.

^H" 638. I. Appointment of Administrators in the United

States. The Third Plenary Council of Baltimore, though it

has changed the mode of electing our bishops, has not

modified the manner of appointing the administrator, as

laid down by the Second Plenary Council of Baltimore.

Hence the following is the mode of appointing adminis

trators : i. If the vacancy is caused by the death of the

bishop, the administrator may be appointed by the bishop

19Leuren., 1. c., qu. 613, 614, 615.

13In regard to the exhibition of the Papal letters of his appointment by the

bishop-elect, Pope Pius IX. (C. Ap. Sedis, 1869) enacted :

"

Suspensionem ipso

facto incurrunt a suorum beneficiorum perceptione, ad beneplacitum S. Sedis,

capitula et conventus ecclesiarum et monasteriorum, aliique omnes qui ad

illarum seu illorum

regimen

et administrationem recipiunt episcopos aliosve

praelatos de praedictis ecclesiis seu monasteriis apud eandem S. Sedem quo-

vis modo provisos, anteqnam ipsi exhilnierint litteias apostolicas de sua promo-

tione." Pope Pius IX. also renewed (C. Rom. Pontifex, 1873) the/wj commune

forbidding those who are nominated or presented for bishoprics to administer

such dioceses, even as vicars-capitular or administrators, before they have ex

hibited the bulls of their appointment. The schema D. Ep. S. Vac. of ihe Vatican

Council proposed to confirm the same, adding that, if the one who was

vicar-capitular at the time happened to be nominated or presented, he

should, eo ipso, on being informed of this, cease to administer the diocese

for which he was nominated (Phillips, Comp., 160, note 12, ed. Vering

Ratisb., 1875;.




himself before his death/4 Should this have been omitted,

the metropolitan," or, in case of his not doii.g so, the senior

suffragan, will designate the administrator.30

The senior

suffragan also appoints the administrator of a vacant metro

politan see, if no priest was appointed by the archbishop be

fore his demise. 2. If a see becomes vacant in any other

manner than by the death of its bishop v.g., by his resigna

tion, translation, etc. then the metropolitan, or, in his

default, as also when the metropolitan see itself falls thus

vacant, the senior suffragan, will designate a competent ec

clesiastic to govern the diocese ad interim. 3. In all these,

cases the appointment is merely provisional, the Holy See

having reserved the right of either confirming or altering it.

34 Cone. PI. Bait. IT., n. 96.35

Ib., n. 97.

36 The third chapter of the above schema of the Vatican Council proposes to

renew, in regard to the administration of dioceses falling vacant by the death

of the bishop in countries situate far from Europe, the regulations of Benedict

XIV., Const. Quam ex Sublimi, August 8, 1755. The schema says: Atten-

dentes imprimis in remotisejusmodi regionibus aliquos archiepiscopos et epis-

copos locorum ordinaries ct residentialcs capitulum canonicorum habere,

alios vero eo esse destitutes, mandamus ut, eveniente cujuslibet antistitis

obitu, statim procedatur ad electionem vicarii capitularis juxta morem, usum.

et consuetudinem hactenus legitime servatam; nimirum, i, ubi capitulum ex-

istit, vel a canonicis duntaxat, si ita in more jam sit positum, vel a canonicis

una cum aliis ecclesiasticis viris, quos in casibus hujusmodi semper inter-

venisse et suffragium suum in ea clectione tulisse constat. 2. Ubi autem

capitulum canonicorum non habetur, ibi parochi, sive soli, sive cum aliis ec-

ciesiasticis viris juxta niodum itidem, usum et consuetudinem de praeterito

servatam, ad vicarii capitularis electionem habendam accedant In ceteris

omnibus autemservari

mandamus Trid. C. de vicarii cap. electione constitu-tiones. 3. In iis vero locis in quibus antistites ordinarii eorundem locorum

residentiales neque capitulum canonicorum, neque parochos in suis civitatibus

et dioecesibus habent, sed duntaxat sacerdotes aliquot et missionarios per

terras et oppida disperses, ita ut, antistite decedente, una simul convenire

baud valeant, vicarius generalis jam a defuncto antistite constitutus, licet doc-

toris gradu in jure canonico auctus non sit, ipso facto jntelligatur et habeatur

tanquam vicarius capilularis cum omnibus facultatibus de jure ad ejusmodi

munus spectantibus, illudque exerceat quousque novus antistes ab Ap. hac

Sede des snatus illuc advenerit, ac susceperit, vel aiiter ab eadem fuerit ordi-




II. Powers of Administrators in the United States. I. The

facilitates of our bishops contained in the form. /., except

ing those which require the ordo episcopalis or the use of the

holy oils,37

can be conferred upon administrators by the

bishop, or, as the case may be, by the archbishop or senior

suffragan. 2. As to the other facilitates, the Second Plenary

Council of Baltimore

38

requested the Holy See,

"

ut episco-

pus, aut, prout casus feret, metropolita vel senior episcopus

possit presbytero sedis vacantis administratori tribuere eas,

omnes facilitates tarn ordinarias quam extra-ordinarias, quibus

gaudent episcopi ex Sanctae Sedis concessioner No answer was

returned by Rome. The same request was afterward re

newed by the Tenth Provincial Council of Baltimore (an.

1869), and was provisionally granted by the Holy See in

these words :

"

Sanctitas sua, licet ea super re nil pro nunc

decern^ndum expresserit, voluit tamen, ut si quam interim

natum. 4. Omnibus autem vicariis apostolicis, sive titulo et dignitate episco

pal praeditis, sive sacerdotali tantum charactere insignitis, sed neque

coadjmorem cum futura successione neque vicarium generalem habentibus

praeciplmus, ut unusquisque eorum teneatur deputare vicarium ex clero sive

saeculari sive regular , habilem tamen atque idoneum. Is vero post vicarii

apostolici obitiim tamquam hujus S. Sedis delegatus assumet regimen vicaria-

tus, et in ejusmodi munere permanebit, donee novus Ap. vicarius ab eadem S.

Sede designatus ipsius vicariatus possessionem et regamen adierit, vel usque

ad quamcunque aliam ab ipsa ineundam ordinationem; idemque pariter alte-

rum statim deputabit ecclesiasticum virum, qui ei, si forte interim obierit, in

munere succedere debeat. Volumus autem pro-vicarios hujusmodi, non

aolum iis omnibus et

singulisuti

posse facultatibus, quae cujusvisecclesiae

cathedralis vicario capitulari de jure competere dignoscuntur, verum etiam

iisdem frui facultatibus, quibus defunctus vicarius apostolicus pollebat, iis

Juntaxat exceptis, quae requirunt characterem episcopalem, vel non sin*

sacrorum oleorum usu exercentur;eidem tamen potestatem facimus ut

quandocunque necessitas urgeat, possit consecr.ire calices, patenas, et altaria

ponabilia. cum sacris oleis ab Episcopo benedictis (Martin, 1. c., pp. 135, 136 ,

cfr. Ferraris, V. Vicar. Cap., art. ii, n. 101).

15

Fac., form, i., n. 28;C. PI. B. II., n. 97.

"

N. 98.



4-8 Administration of Vacant Dioceses.

ex tuae provinciae39 dioecesibus vacare contigerit, adminis

trator, sede vacante, donetur facultatibus extraordinariis

contentis sub formulis C. D. E, exceptis iis, quae charac-

terem episcopalem requirunt."

48

Q. How are administrators or vicars-capitular appointed

in other missionary countries?

A. We premise: All vicars-apostolic of

missionarycountries, whether they be simple priests or bishops, but

without coadjutors cum successione, must appoint vicars-

general. We now answer:

1. The general rule is that upon the death of the vicar-

apostolic (whether he be a bishop or merely a priest) his

vicar-general becomes ipso facto, by Pontifical authority,

vicar-capitular,and retains this office until a

new vicar-

apostolic has been appointed by the Holy See and taken

possession of the vicariate.

2. In missionary countries where there are ordinary

bishops, vicars-capitular, where such has been the custom,

should be elected immediately upon the death of the bishop

by chapters, if any, or by the parish priests. And where

there are no chapters, and the parish priests are too fewor too much scattered to meet for an election, the vicar-

general of the deceased bishop becomes ipso facto the vicar-

capitular.41

In Ireland and England vicars-capitular are elected by

chapters within eight days after the see becomes vacant.

39

Hence, this concession was given for the province of Baltimore only, not

for the whole United States. As the province of Baltimore, at the time this

concession was granted, namely, in 1869, comprised the present province of

Philadelphia, it follows that this rescript extends to all the dioceses now com

prising the province of Philadelphia, which was erected into an archdiocese

and separate province in 1875. (Cf. Konings, fac. n. 115.)

40Ap. Coll. Lac., torn, iii., p. 599: cfr. ib., pp 577, 584, 585, 596, 599.

41 Bened. XIV., C. Quam ex Sublimi, Aug. 8, 1755; Coll. Lac., iii., p. 1114.



CHAPTER IX.

OF PARISH PRIESTS THEIR RIGHTS AND DUTIES.

ART. I.

Nature of the Office of Parish Priests as at present understood

Mode of Appointment, etc.

I . Errors respecting the institution of Parish Priests.

639. Gerson, chancellor of the Sorbonne, was the first

who, in the beginning of the fifteenth century, maintained

that parish priests were instituted by Christ himself.1

This

is erroneous; for, i, in the first three centuries of the

Church there were no parishes or parish priests in any part

of the world. There was, in fact, but one church in the

principal city of the diocese i.e., in the city where the

bishop resided. To this church all the faithful, not merely

of the city itself, but also of the neighboring villages, went

on Sundays to assist at Mass and receive the sacraments.2

To the absent holy communion was brought by the deacons.

When the faithful became more numerous, other churches

were indeed built, even in the episcopal city ;but services

were performed there by priests from the cathedral, not by

parish priests i.e., not by priests permanently appointed (per

modiun stabilis officii ]to exercise the cura animarum over de

terminate congregations.3

Hence, there was but one parish

in each diocese namely, the cathedral. The bishop was, so

to say, the parish priest of, and exercised the cura through-

1

Bouix, De Paroch., p. 82. Paris, 1867.*Devoti, 1. i., tit. id., n. 87, 88.

Bouix, 1. c., pp. 13, 22.

429



43O The Rights and Duties

out, the whole diocese, either personally or, when impeded,

through ITSpriests."

2. It was only after the third century

that parishes came to be established, and that, at first, in

rural districts only/ and, later on (i.e., after the year 1000),

also in cities.8

3. Hence, parish priests are merely of eccle

siastical, not of divine, institution. Nor is the contrary

provablefrom Sacred

Scripture.For the word

presbytcri,as mentioned in the texts quoted by our opponents, does

not necessarily refer to parish priests, since, in the first ages,

bishops were also called presbyteri?

2. Correct View of the Nature of theOffice of Parish Priests

Irremovability Status of Pastors in the United States.

640. We shall here show, i, what are the chief errors

on this head; 2, what is essentially required to constitute a

parish priest in the canonical sense of the term. Chief Er

roneous Systems respecting the Rights of Parish Priests. I.

Presbyterianism proper, so called because it makes priests

presbyters) the equals of bishops, and asserts that bishops

have, jure divino, no powers that are not equally possessed

by priests. This heretical system, broached by Aerius in

the fourth century, was renewed by Wiclef, Huss, Luther,

Calvin, etc. II. Again, there are those who do not at

least openly deny that bishops are, jure divino, superior to

priests, but who attribute to parish priests many undue

parochial rights. They are styled parochistae, and their

system parochismus* Now, the principal errors of the parochistae are : i . Those of Richer, whose tenets may be

summed up thus : The Holy See can exercise no act of

jurisdiction in the dioceses of bishops without the consent

4

Ferraris, V. Parochia., n. 7.

6That is, in villages whose inhabitants could not conveniently go to tha

thurch in the episcopal city.*

Supra, n. 243.7

Craiss., n. 1205.&

Notimproperly

alsoPresbyterianism us .Bouix,

1.

c., p 80).*

Salz., t. ii., p. 188.



of Parish Priests.

of the bishops themselves; bishops, in turn, cannot interfere

in the management of parishes, except by consent of the

parish priests.That these assertions are utterly false is

provable from their logical consequences. For if it were

true that bishops and Popes have but jurisdictio mediata, not

immediata, over the faithful, it would follow that, except in

case of necessity, no bishop nay, not even the Pope himself

could anywhere, either personally or through others, per

form any sacred function, such as preaching, hearing confes

sions, without the consent of parish priests which is mani

festly erroneous and absurd.10

2. Those of Gerson and

others, who maintain that parish priests have, by virtue of

their office, power to excommunicate, and, in general, juris

diction in foro externo ; that they are judices fidei, and have

a definitive vote in councils. We shall not attempt here to

confute these errors in detail. Suffice it to saynthat parish

priests do not at present, and probably never did, possess

any jurisdiction-

foro externo; cannot excommunicate

by virtue of their office, and have no decisive voice in

councils.

641 . What is meant by a Parish Priest in the canonicalsense of

the term. Definition.A parish priest (parochus, rector, cura-

tus) is a person lawfully and irremovably (n. 259) appointed to

exercise, in his own name and exobligatione, the cura animarum

that is, to preach the word of God and administer the

sacraments to a determinate number of the faithful of a dio

cese, who in turn are, in a measure, bound to receive the

sacraments from him.13 As this definition includes all the

conditions essentially requisite to constitute a parish priest,

in the canonical sense of the term, we shall briefly explain

10

Craiss., n. 1292."

Cfr. Bouix, 1. c., pp. 120, 132, 142.

111

Hence, they are not even praelati minores, nor dignitates ; nor can they be

called pastors (pastores) in the strict sense; though, at present, they are not un-

frequently called pastors namely, of the second order, and in a broad sense

(Craiss., n. 1305"

Bouix, 1. c., p. 175.



4.32 The Rights and Duties

its terms: I.

We say, the cura anunarum ; now, this cutaconsists chiefly in the preaching of the word of God and the

administration of the sacraments.14 As the administration

of the sacraments necessarily includes the power to impart

sacramental absolution, it is evident that one who is ap

pointed parish priest has, eo ipso, jurisdiction in foro poenitenti-

alt, and may, if he is a priest, hear confessions without any fur

ther approbation. 2. We say, in Jiis ozvn name (nominepropric,

jure proprio) ;that is, by virtue of his office, and not merely

as the vicar or in the name of another v.g., the bishop.14

Hence, assistant priests, though they exercise the cura, are

not on that account parish priests ;for they exercise the

rura merely for, or in the stead of, others namely, pastors.

Parish priests, therefore, are vested wi\h jurisdictio ordinaria,

not merely delcgata ; once appointed, they, like vicars-gen

eral, have, in a measure, jurisdiction a lege ccclesiastica. 3.

We say, and ex obligatione ; that is, the parish priest is

obliged to administer the sacraments to the faithful under his

charge.16

4. We say, to a determinate number, etc.; hence, par

ishes must in all cases have accurately-defined limits. There

fore,where there are distinct

parishes and parish priests

proper (parochi in titulum i.e., in beneficium perpetuum},

the bishop,17

though having pre-eminently the cura animarum

throughout the diocese, is not, strictly speaking, the parish

priestofthe whole diocese.18

In places, however, where there

are no separate parishes and no parish priests, in the canoni

cal sense of the term as was formerly the case nearly all over

Spain, and those places referred to by theC. of Trent (sess.

xxiv., c. xiii., d. R.) the whole diocese is considered but one

parish, of which the bishop is the rector or universal parish

14

Bouix, 1. c., p. 171 ;cfr. Ferraris, 1. c., n. 18.

16

Leuren., For. Ben., p. i., qu 146.lt

Ib., qa. 1461

17 He is, however, the parish priest proper of his cathedral (ib., qu. 143).* Even in this case cpiscopusjus habet, ut se ingerere possit in cura cujuslibct

parochiae, et in ea pro libitu se occupaie (Ib.)



Of ParisJi Priests. 433

priest.19

5.We say, wJio in turn are, in a measure, bound, etc.;

hence, a pastor whose parishioners are altogether free to

receive the sacraments outside of their own parish is not,

canonically speaking, a parish priest.20

For the Council of

Trent (sess. xxiv., c. xiii., De Ref.) "enjoins on bishops that,

having divided the people into fixed and proper parishes,

they shall assign to each parish its own perpetual (i.e.,

irremovable) parish priest, who may know his parishioners,

and from whom alone they may licitly receive the sacraments"

Parishes, as a rule, are distinguished from each other, and

the number of people belonging to each parish is usually

determined by territorial circumscription or boundaries."1

We say, as a rule ; for it is not repugnant to canon law that

a parish, in the canonical sense of the word, should consist

of certain families, even though living in the districts of

other parishes.23

In the United States German congregations are usually established in this manner that is, thev

are made up of the German Catholics of a place, no matter

whether they live in the confines of English-speaking con

gregations.

642.- I. How many kinds of"

cura animarum"

are there ?

These: I. The cura plena and partialis. The cura plena ii

that which includes jurisdiction in foro externo and the potes-

tas judicialis ; the Sovereign Pontiff exercises it all over th*

world; bishops in their respective dioceses. The cura par

tialis is that which is restricted to matters pertaining to the

forum internum."^ 2. The cura Jiabitualis and actualis.

Aperson is said to have the cura Jiabitualis when he neither

does nor can, de facto, exercise it, though he can and should

see that it is exercised by another person. On the other

hand, a person who, de facto, has the right to exercise the

cura is said to have the cura actualis. Thus, a cathedral

"

Bouix, 1. c., p. 173.20

Leuren., 1. c., qu. 146.

M (b., qu. 160; Bouix, 1. c., p. 269. Ferraris, 1. c. n. 17

*Bouix, 1. c., p. 178.



434 The RigJits and Duties

chapter to which the cura is attached has the euro, habitualis

only is parochus Jiabitu while the vicar appointed by it to

exercise the cura has the euro, actualis, and is, properly

speaking, the parochus. II. What "cura" is essential to the

office of parish priest ? The cura partialis. We observe,

when we speak simply of the cura animarum, we mean the

cura as exercised by parish priests i.e., the cura partialis.

2. The cura habitualis is not sufficient. A parochus Jiabitu,

therefore, is not, strictly speaking, a parish priest. The

cura actualis, however, is sufficient, even without the cura

habitualis. Thus, the parochial vicar (vicarius capituli curatus) .

appointed by a chapter having the cura habitualis is a true

parish priest. In the United States no cura habitualis is

vested in

any personor ecclesiastical

corporation.HI. Can

tJiere be several parish priests in one and the same parisfi ? \ .

The question is controverted. The negative25

holds that a

parish priest is essentially one who exercises the cura solely

and exclusively in his parish, so that if two or more were

placed in charge of the same parish none of them would be

parish priest.2. It is admitted by all that, as a rule, it is

more expedient that but one parish priest should be placedover a parish. 3. Congregations in the United States

should be governed each by one priest only as pastor, not

by several evaequo"

ISgT3

643. Q. Is the amovibilitas of rectors contrary to the

o-eneral law of the Church ? In other words, does the gen-O

eral law of the Church, as still in force, forbid the care of

souls to be exercised by rectors who are amovibiles?

A. We premise : In our question we say the general law ;

for. as we have already shown above (n. 417), the Church

sometimes and exceptionally allows, by special law, v.g., by

25It is the sententia multo communior (Bouix, 1. c., p. 182).

26 We prescind, of course, from the bishop s rights.

81 Cone. PI. Bait. II., n. in.



of Parish Priests. 435

apostolic dispensation, the care of souls to be exercised by

rectors who are removable.

We now answer: The law of the Church, as still in full

force, is that the care of souls shall be exercised by rectors

who are irremovable. In other words, as the Secretary of

the S. C. C., in the cause Portnen. et S. Ruf., i4th February,

1846, says, the Church not only exhorts, but commands that

rectors and all others having the" cura animarum" shall be

irremovable. This law of the Church, already clearly laid

down by Pope Innocent III. in the General Council of the

Lateran (i2i6),2fc

and by Pope Boniface VIII." (f 1303), was

renewed and strictly inculcated by the Council of Trent,30

es

pecially in session xxiv., chap. 13, De Ref., where it"enjoins

on bishops, that for the greater security of the salvation of

souls, . . . they shall assign to each parish its own perpetual

parish priest, who may know his ownparishioners."

Accord

ingly, as the above Secretary continues, it has been the un

varying custom of the Sacred Congregation of the Council,

which is the authentic expounder and interpreter of the true

meaningof the Council of

Trent, alwaysto declare that

rectors appointed to exercise the care of souls shall invaria

bly, and notwithstanding any custom to the contrary, be

inamombiles and not amovibiles.*1

Consequently, writes the

Secretary, it is also the constant practice of the S. C. C.

most earnestly to exhort bishops in whose dioceses there are

paroeciae or missiones amovibiles to change these parishes or

missions into parocliiae perpetuae or inamovibiles, that is, into

parishes whose rectors are irremovable.32

644. This law is in harmony with the very nature of the

48Cap. Extirpandae 30, veto, de praeb. (iii., 5).

isCap. Unic. de Capell. Mon. in 6 (III. 18).

30 Sess. vii.. cap. vii., De Ref. ; sess. xxiv., cap. xiii,De Ref.

31Cf. S. C. C. in Baren. Cura Anim. Aug. 29, 1857-, Lucidi, De Visit.

SS. LL., vol. iii., p. 243 sq.

i2Lingen et Reus, Causae selectae S. C. C.. n. 826.



436 Tke Rights and Duties

office and of the duties of one charged with the care of

souls. For these duties consist principally in preaching the

word of God and administering the sacraments to the par

ishioners, and in attending to all their spiritual wants. Hence

the pastor is the father and the sheplierd of his flock. The

souls of the parishioners are entrusted to his keeping. It is

his duty to watch constantly over the faithful committed to

his care. Now, no one will deny that while these duties

can, absolutely speaking, be discharged sufficiently well by

a rector who is removable, and who is therefore not looked

upon, by the law, as a shepherd in the true sense, yet they

will be discharged better and with greater profit to souls,

by a rector who is irremovable, and who is consequently

regardedas the

spouse,the

sJiepJierd and the spiritual*fatherof the flock, to whom he is wedded by a spiritual wedlock

stronger than the carnal. These reasons are clearly recog

nized by the Council of Trent (sess. xxiv., c. 13, De Ref.),

where it commands bishops to appoint irremovable rectors

over churches, for the greater security of the salvation of souls,

and that the rector may know his own parishioners.

The general opinion of canonists confirms the above

teaching. For nearly all of them, with an odd exception

here and there, teach that the law of the Church requires

rectors or parish priests to be irremovable;33

that conse

quently irremovability is one of the requisite prerogatives of

a true parish priest ;and that therefore rectors who are re

movable are not canonical parish priests in the true sense of

the term. 34

If, therefore, irremovability is prescribed by the gen

eral law, it follows clearly that removability is opposed

to this. general law. In other words, the general law pre

scribes that the care of souls shall be exercised by rectors

33Lucidi, de Visit. SS. LL., vol. i., p. 396, n. 292.

34 See our Counter-Points,p. 70 sq.,

where wegive

the words ofLeurenius,

Soglia, Ferraris, and others.



of Parish Priests.437

who are irremovable;therefore it forbids that this care of

souls shall be exercised by removable rectors. However,

as we have seen, by special laiv, v.g., by papal dispensation,

the Church sometimes derogates from this general law, and

tolerates removability for exceptional reasons.

While therefore we agree with Bouix,36

that the irre

movability of rectors is not absolutely required by the nature

of the duties incumbent upon a pastor, we differ from him

when he teaches that the general law is not opposed to the

care of souls being exercised by rectors removable at the

will of the bishop.5 &

This view is, as we have seen, directly

opposed to the clear letter of the law and to the general

teaching of canonists. In fact, in advocating it, Bouix stands

almost alone among canonists. But let us briefly state and

ans\ver his arguments.

He contends that removability at the will of the bishop

is not contrary (a) to the early discipline of the Church (),

nor to t"he general law as it stood prior to the Council of

Trent(c],

nor to the latter council. We have already seen

that the Council of Trent is opposed to the removability in

question. As to the general law of the Church prior to the

Council of Trent, we have also shown that Popes Innocent

III. and Boniface VIII. clearly enact that the rectors of

souls shall be irremovable. Thus Pope Boniface VIII. (1298)

decrees :

"

Presbyteri, qui ad curam populi . . praesentantur

episcopis, cum debcant esse perpetui, consuetudine vel statuto

quoviscontrario non

obstante,ab eisdem

nequeuntecclesiis

. . . amoveri."37

It only remains, therefore, to examine

the early discipline of the Church. Now the history of the

early ages of the Church will show that the assertion of

Bouix is incorrect. For, as Avanzini shows in the Acta

S. Sedis, vol. iii., p. 506 sq., it is well known that in the first

35 De Paroch., p. 193 sq.3t

Ib., p. 201 sq.

31Cap. un. de Cap. Mon. in 6 (iii., 18).



438 7*he Rights and Duties

ages of the Church, when the number of the faithful had in

creased, various offices and grades of dignity were estab

lished and conferred upon ecclesiastics. These offices or

positions were most closely interlinked with the ordination it

self, so that, as we say above (n. 584), no person was promoted

to any ordo, whether major or minor, without being at the

same time perpetually or irremovably attached to some church

or pious place,38 where he exercised permanently the duties

of whatever ordo he had received.30

Hence those who were

removed from their office or charge were notunfrequently

said to be also deprived of the priesthood. Likewise their

ordination was often called invalid which was not accom

panied by an appointment to an ecclesiastical office or posi

tion.40

fSIP 645. This discipline prevailed at a time when ecclesi

astical offices were known, but when as yet benefices were

entirely unknown. For benefices, especially parochial, were

not at least universally established until after the year 1000

(supra, n. 639). In fact, in the early ages of the Church the

offerings of the faithful and the income of all the churches of

the whole diocese were put into a common fund, which wasunder the control of the bishop, and divided into four por

tions : one for the bishop ;another for the ecclesiastics of

the diocese, each one receiving a share proportionate to his

office or grade; the third, for the poor and strangers; the

fourth, for the maintenance and repairs of the churches.41

The fund was distributed by priests or deacons.

In the course of time, each church was allowed to retain

and administer its own income for its own wants, and thus

benefices were established. For a benefice, objectively

3* Thus Pope Urban II. in the Can Sanctorum 2, dist. 70, says:"

In qua

ecclesia quilibet titulatus est, in ea perpttuo perseveret"

39Cf. Acta S. Sedis, vol. iii., p. 508.

40 Can. 6, Cone. Chalced., cf. Can. r, 2, 3, 4. dist. 76.

41 Const, of Pope Gelasius, Causa 12, q. 2, Can. Vobis 23.




speaking, is nothing else than the revenues attached to a de-

terminate ecclesiastical office. Now, as the incumbent was

appointed permanently to the office or church, so also did he

receive, as soon as the common fund disappeared, and the

revenues of his office or church remained with the latter,

the perpetual right to administer and receive the revenues

or income of his church.a

From this it will be seen th:

irremovability does not owe its origin to the establishment

of benefices;that it existed before as well as after they

were introduced. Benefices merely added to the incumbent s

right to hold the office permanently, the right to administer

and receive its income permanently. Hence the amovibilitas

of rectors is opposed to the early discipline of the Church.

fS^" From the above it will be seen that a church maybe a canonical parish and have a canonical parish priest, even

though it is not a benefice. It should indeed have a suf

ficient revenue. But it matters not whether this income is

derived from pew-rents, collections, etc., as in the U. S., or

from real estate. Hence, on this score, there is no obstacle

in the way of our missions becoming canonical parishes.b

3. On the Canonical Formation and Suppression of Parishes.

646. We sufficiently described the formation of parishes

when we spoke of the erection of benefices or parishes.

We shall here subjoin only a few words, i, on the formation

of parishes cum jure patronatus ; 2, on the alteration and

suppression of parishes in general. I. Formation of Parishes

"

cum jure patronatus" The jus patronatusconsists

chieflyin

a Acta S. Sedis, vol. iii. p. 510.

b In the conferences held at Rome in 1883 between the Cardinals of the S. C.

de P. F. and the American Prelates, the Cardinals proposed to establish in the

United States canonical parishes proper, whose rectors should be canonical

parish priests proper, possessed of irremovability, ordinary jurisdiction, and all

the other rights and duties of canonical parish priests. To this our Prelates

objected. The matter was finally compromised and decided by the Cardinals

as follows :

"

Utrum in America debeant constituiveri

parochiin sensu

canonico vel tantum rectores inamovibiles sicut in Anglia cum sola dote in-

amovibilitatis et absque juribus ac privilegiis verorum Parochorum-? Erhi

dixerunt, propositam quaestionem esse definiendam ita : Pro nunc esse consii

tuendos rectores inamovibiles sicut in Anglia."



The Rights and Duties

this :

that when a benefice or parish becomes vacant, the pa-tronus can present the new rector to the bishop for appointment.

"

The rector thus presented acquires ajus ad rem, andmust be appointed to the vacant place, unless some canoni

cal obstacle stands in the way.43 How is the

"

jus patronatus"

acquired? i. Extraordinarily (dejure singulari} by prescrip.

tion, custom, andprivilege. 2. Ordinarily (dejure communi}

a person acquires the jus patronatus in three ways: i, by

giving the land upon which the church is to be built (funda-

tione, conccssione fundi} ; 2, by defraying the expenses of the

building of the church(aedificatione, constrnctwnc] ; 3, by en

dowing the church(dotatione). It is sufficient for a person

to perform one of these three things, and it is not necessaryfor him to perform all three." Thus, a

person acquiresthe

juspatronatus, i, by donating the ground (though only after

the church has been built upon it and endowed) ;

45

2, or by

building a church at his own expense ; 3, or by endowing it.4

The endowment must be sufficient i.e., sufficient revenues

must be assigned the church for the support of the clergy

men, for the maintenance of divine worship, for candles, and

the like. Nojus patronatus arises from an insufficient en

dowment. Moreover, simple donations, legacies, or contri

butions do not confer the jus patronatus, even though theyconstitute a dos

sufficiens." A person, therefore, not assign

ing an endowment proper, but merely contributing, even

though generously, to a church, does not become an en-

dower(dotator), but merely a benefactor (benefactor}. Hence,

as Kenrick

48

says, no jus patronatus exists in the United

"

Craiss., n. 1322. A postulatum, made by a number of German bishops al

the Vatican Council, proposed to restrict the right of presentation, so that lay

patrons should be obliged to present one of three persons to be designated bythe ordinary (Martin, 1. c., p. 172). Supra, n. 320.

44

Leuren., 1. c, p. ii., qu. 30. Ib., qu . 39 .

46

Ferraris, V. Jus Patronatus, art. i., n. 20, 26."

Leuren. 1. c., qu. 4348 Tr. 12, n. 96; cfr. Cone. PI. Bait. II., n. 184.



of Parksh Priests. 441

States, because our churches are maintained simply by con

tributions from the faithful. From what has been said, it

follows that the same church may have several patroni v.g,^

if one gives the land, another builds the church, and a third

endows it;in this case all three are patroni in solidum

z>.,

have equal rights, each having a vote in the nomination of

the pastor.49

Again, if a number of persons concur in per

forming one of the three above actions i.e., if they together

either buy the land, etc. ajl of them become patroni The

consent of the ordinary is indispensable for the acquisition

of the jus patronatus ; it need not, however, be necessarily

given before or diLring the building of the church. Thus, if a

church were built without the consent of the bishop, but

afterwards accepted by him, this acceptance would be suffi

cient consent.61 We need not here say that thejus patrona

tus does not mean the right to actually appoint the pastor,

but merely to present him for appointment. Finally, we ob

serve, the Church has instituted the Jus patronatus in order

to encourage the faithful to build and generously endow

churches II. Alteration and Suppression of Parishes in gen

eral. The bishop may, by virtue of his potestas ordinaria

change a church not having the care of souls annexed (eccle-

ria simplex) into one with the care of souls (ecclesia curata),

but not vice versa. He may also, by virtue of his potestas

ordinaria, change a parish whose rector is amovibilis into one

whose rector is inamovibilis, but not vice versa, as we have

shown above." The bishopmay

suppress parishes in all

cases where he can unite them aocessorily to other churches.

49Leuren., 1. c., qu. 31.


61Leuren., 1. c., qu. 36, n. I, 2.

s2Bouix, De Paroch., p. 297.

*3Leuren., For. Benef., p. iii., q. 964, n. 5.

MSupra, n. 258.



4.42 The Rights and Duties

4. Manner of Appointing Irremovable Rectors, also in the

United States The Concursus.

l^gF" 647. The Council of Trent, desirous that parishes

should be provided with worthy and competent parish

priests, enacted that appointments to parishes must be made

by concursus, or competitive examination. Hence it ordained

that when a

parishfalls vacant, the

bishopshall fix a

dayfor

the competitive examination. On the day appointed, all

those whose names have been entered for the examination

shall be examined by the bishop, or his vicar-general, and by

at least three synodal examiners. The vacant parish can be .

conferred by the bishop only on one of those who have suc

cessfully passed the examination. Nay, if several have been

approved or passed by the examiners, the bishop must confer the parish on the one who is the dignior or most worthy

among- them. All appointments made contrary to these

prescriptions are surreptitious, i.e., null and void.55

Notwithstanding these clear enactments of the Council

of 1 rent, it was found that in a number of dioceses the

bishop s curia held both in theory and practice, either that

the concursus was binding only on pain of the illicitness, but

not of the nullity of the appointment, or that the Council of

Trent obliged the bishop to appoint from among those who

had successfully passed the examination merely the dignus,

but not the dignior. Against these erroneous opinions Pope

Pius V. issued his constitution In confercndis (May 16, 1567),

in which he ordains chiefly: I. That all appointments to"

parishes made without the concursus, as prescribed by the

Council of Trent, are null and void, not merely illicit; 2, that

the bishop is bound to appoint the dignior, and that he cannot

select one who is merely dignus ; 3, that, therefore, those who

55 Cone. Trid., sess. xxiv., c. xviii., De Ref.

56 The opinion that the bishop is not bound to appoint the dignior, but can

select one who is merely dignus, was also condemned by Pope Innocent XI.

(1676-1679). See Bouix, De Par., p. 337.




have made the examination, but are not appointed, have the

right to appeal, though onlym dcvolutivo,to the metropolitan

(or, where the metropolitan himself was the appointer, to

the nearest ordinary, as delegate of the Holy See), or to the

Holy See; 4, that thereupon a new examination must take

place before the metropolitan and his synodal examiners,

and the parish must be conferred upon him who, in this

second examination, is found by the metropolitan to be dig-

nior? i.e., the most worthy.

However, these excellent regulations, like all that is

good, were, as Benedict XIV. says, abused by the malice

of men. Let us explain. As we have just seen, according

to the regulations of Pope Pius V., the concursus had to

be made over again before the judge of appeal, whenever

an unsuccessful candidate appealed against the appointment

made by the ordinary.

Now, the Council of Trent did not determine the manner

in which the examination should be held whether it should

be written or oral. In consequence, various modes of holding

the examination began to prevail. In some places it was

oral;in others, in writing. Again, in some dioceses the same

questions were put to the different candidates;in others,

each candidate was examined on a different subject.58 Hence

it frequently happened that no written records or acts of the

examination were extant. Consequently, when an appeal

was made, the metropolitan found it necessary to admit the

appealand order a new

examination,on the mere

allegationor

statement of the appellant, even where he showed no probable

cause of complaint.59

Owing to this state of things, it natu

rally occurred very often that competitors who were not

appointed to the vacant parish would, without any legiti

mate or sufficient reasons, appeal to the metropolitan ;

60

that

51 See Const. In conferendis, in Pyrr. Corradus, Praxis benef., lib. Hi., cap.

iii., n. 4 sq.

58 Bened. XIV., Const. Cum illud, 1742, 7. Ib., 5. Ib., 3.



444 The Rights and Duties

their appeal was forthwith entertained;and that the one

appointed by the bishop was thus obliged to travel a distance

away from his parish and undergo a new examination before

the metropolitan, and that before the appellant had shown

that his complaint was based upon any foundation what

ever.61

|31P Toremedy

these evils,

PopeClement

XL, by;i

decree,62

issued by the S. C. C., Jan. 18, 1721, enacted: I

That the examinations must be in -writing, and that con

sequently the candidates must give vuritten answers; 2,

that the same questions must be given to all the candidates;-

3, that the appeal against the unfair report of the examiners.

or the unreasonable appointment made by the bishop must

be made within ten days from the day of the appointment tothe parish; 4, that a new concursus shall not be ordered bythe judge of appeal, unless it appears Irom the acts of the pre

vious concursus namely, from the written answers of the com

petitors that in point of learning, the appellant has been

wronged by the report of the examiners, or the appointmentmade by the bishop.

From this it will be seen that the decree of Pope ClementXI. did not do away with the necessity of making the con-

ursus over again before the metropolitan. On this score,

numerous complaints were made to the Holy See. It was

s:id that this repetition of the concursus had this dis

advantage, that the appellant competitor, though inferior to

his rival, in point of learning, at the time of the first concur

sus, might prepare better for the second examination, and

thus defeat his competitor the second time." Again, it was

complained that as the decree of Clement XI. allowed appellants to present to the judge ad quern new and additional

testimonials of character, it happened not unfrequent.lv that

61 Bened. XIV., Const. Cum illud, 3.

62

This decreeis

embodied in the Const. Cum illud, 7, of Bened XIV.Bened. XIV., Const. Cum illud, 4.




those appellants would, after the first concursus, collect all

sorts of new testimonials, attesting their good character, fit

ness for the parish, etc., etc., and submit them to the judge

ad quern, who would revoke the appointment of the ordinary

and appoint the appellant to the parish, mainly on the

strength of these new testimonials.61

Finally, in a number of

dioceses, the synodal examiners, contrary to the clear enact

ment of the Council of Trent (sess. xxiv., c. 18, De Ref.), in

approving competitors, took into account solely their learn

ing, and not also other prescribed qualifications.65

I51F To remedy these complaints, and thus to give the

finishing touch to the law of the Church on the concursus,

Benedict XIV., on the I4th of December, 1742, issued the

Const. Cum illud, in which, after confirming the enactments

of Pope Pius V. concerning the obligation of appointing the

dignior, or the most worthy, and the right to appeal against

the report of the examiners, or the appointment of the

bishop, and also the law of Pope Clement XL concerning

the necessity of making the concursus in writing, he adds the

following regulations: i. When a parish falls vacant, the

bishop shall, by a public edict, fix a suitable day for the hold

ing of the competitive examination, notifying at the same time

all who wish to make the concursus that they must, within

this time and before the day set apart for the concursus, file

with the diocesan chancellor all testimonials, judicial or ex

tra-judicial, of their fitness, merits, qualifications, etc. After

theexpiration

of this time no testimonial or document of

anykind can be received.

68

2. The chancellor must make out a

written summary or synopsis of all the documents or testi

monials presented by the various candidates;a copy of this

synopsis will be given to the bishop, and to each of the ex

aminers,67

who, in approving candidates, after the examina

tion, must take into account, not merely their learning, but

64 Bened. XIV., Const. Cum illud, 13.65 Ib., 10, n.

66Ib., 16, ii.

61Ib., 16, iii.



44^ The Rights and DiUics

also their other merits and qualifications.68

3. In case a com

petitor who is rejected appeals either a mala relations exami

natorum, orab irrationabilijudicio episcopi, he must produce be

fore the judge of appeal all the acts or records of the examina

tion held in the first instance, which must be given him for

that purpose by the chancellor. The judge ad quern must

pronounce his decision solely and exclusively on the

strengthof the records or acts of the first concursus. Hence ke

cannot order any new concursus, nor receive any documents

or testimonials other than those contained in the acts of the

first instance." 4. Finally, when the judge ad quern pronounces sentence in entire conformity with the appointment,of the ordinary, that is, in every respect, against the appellant and in favor of the

competitor appointed bv the bishop,no further appeal is allowed, and the controversy becomes

resjudicata. But if he reverses the action or appointment of

the ordinary, the competitor appointed by the bishop can

appeal to the higher judge, whose sentence shall be final and

unappealable.70

fîP From what has been said thus far, it will be seen that

the general law of the Church, as in full force at the present

day, may be summed up thus: I. That all appointments to

parihses must be made by concursus, on pain of nullity of the

appointment; 2, that the concursus must be in writing; 3,

that the bishop is obliged to appoint from among those whoare approved by the examiners, the digmor,nnd cannot select

one who is merely dignus (supra, n. 376); 4, that the exam

iners must take into account not merely the learning of the

competitors, but also their other qualifications (supra, n. 367

sq.); 5, that the competitors, who are not appointed, can

appeal, in dcvolutivo ; 6, that the judge to whom the appealis made must decide the case solelyfrom the acts of the con

cursus already made, and cannot, therefore, order a new con

cursus, or admit additional testimonials.

6S Const Cum Hind, 16. iv. 69Ih., 16, vi.

&

Ib., 17.




We have said that appointments made without the con-

cursus are null and void. This is the general rule. For

there are some exceptions, partly indicated already by the

Council of Trent itself, partly introduced by custom, and

partly sanctioned expressly by the Holy See. Thus, no con-

cursus is required, I, in the appointment of rectors or par

ish priests ad nutum amovibiles-11

for the Council of Trent

speaks merely of beneficia curata which are perpetua, i.e.,

those parishes which have irremovable rectors;72

2, nor in

appointments to parishes which possess so slight revenues as

not to allow of the trouble of such examination; 3, nor in case

grievous quarrels and tumults might result from the concur-

sus;" 4, nor (except in Rome 74

)in the appointment of vicars

(vicarii curati) of parishes united (parochiae ttnitae] to monas

teries, chapters, and the like namely, where the aira habitu-

alis is vested in \he parochus principalis (i.e.,the chapter, etc.),

and the cura actualis in the vicarius. For other cases, see

Bouix.75

fjiF 648. Q. What is the manner of appointing rectors in

the United States?

A. We premise: Up to the Third Plenary Council of Bal

timore held in 1884, all our rectors were amovibiles. The

aforesaid council decreed that in future one rector out of

ever}-

ten should be irremovable.11 Hence we have at pres

ent two kinds of rectors, removable and irremovable.

We now answer: I. Our rectors who are amovibiles are

appointed

in the manner laid downby

the SecondPlenary

Council of Baltimore, n. 126. II. As to our irremovable rec

tors, the Third Plenary Council of Baltimore enacts: I. The

creation of missioncs inamovibiles and the appointment of the

irremovable rectors must take place within three years from

11S. C. C., Jan. 12, 1619.

12Bouix, De Par., p. 348.

"However, in these cases the ordinary must have before his eyes what the

Council of Trent says in cap. xviii., sess. xxiv., De Ref. , in fine.

14Craiss., n. 1330.

5 De Paroch., p. 347 sq.* Cone. PI. Bait. III., n. 40.




the promulgation of the council, i.e., from January 6, i886.b

2. The bishop can appoint the irremovable rectors, for the

first time, without the concursus, though not without the

advice of his consultors;

after that, only by concursus?- and

that on pain of nullity of the appointment. However, even

after the first appointments, though only in a particular case,

the bishop may, without the concursus, though not without

the advice of the synodal or pro-synodal examiners, appoint

an ecclesiastic to an irremovable parish, whose learning is

abundantly attested either by the office which he holds, v.g.,

if he is a synodal examiner, or by his dignity, or also bv the.

long labors with which he has laudably served the Church.6

3. The concursus is made in the same manner as that laid

down in thegeneral

law of the Churchand described

above; in other words, it is made before bishop or vicar-

general and three synodal or pro-synodal examiners in writ

ing, etc/ 4. Only those priests can be admitted to the con

cursus who have laudably exercised the sacred ministry for

at least ten years, in the diocese, and have within that time

given proof of their ability to govern the parish spiritually

and temporally, either in the capacity of simple rectors, or

in some other way.8

5. The mission must be conferred on the

dignior, i.e., the most worthy among those who passed the ex

amination, and cannot be conferred on one who is merely dig-

nus. 6. The examiners can and should approve all who are

worthy or digni. The bishop alone has the right to deter

mine which one among the approved is the most worthy, or

dignior. However, the bishop may laudably, before making

the appointment, ask the advice of the examiners as to whom

b Cone. PI. Bait. III., n. 35.cIb., n. 37.

dIb., n. 36, 57.

c Cone. PI. Bait. III., n. 57 ;cf. Ib., p. 204, Instr. S. C. de P. F., Oct. ID,

1884, De Concursu.

fCf. Cone. PL Bait. III., n. 41 sq., where the manner in which the concur*

sus must be made is carefully described.

* Cone. PI. Bait. III., n. 36, 43.




they regard as the dignior or most worthy.11

7. Competitors

who are not appointed have a right to appeal"

in devolu-

tivo" to the metropolitan or Holy See against the appoint

ment made by the bishop, and also against the unfair report

of the examiners, as provided in the Const. Cum illud of

Pope Benedict XIV. 1

8. The judge to whom the appeal is

made must decide the case solely and exclusively from the

acts of the concursus already made. Hence he cannot order

the concursus to be made over before him and his synodal ex

aminers;nor can he receive any new testimonials whatever

as to the fitness, etc., of the appellants. 9. Finally, where

on account of the vast extent of the diocese and the distance

of places, v.g.,in some of the Western and Southern dioceses,

or other peculiar obstacles, a special concursus can be held

only with difficulty, every time an irremovable parish falls

Vacant, it is allowed to separate the concursus, by which the

learning of the candidates is ascertained, from that by which

the other canonical qualifications are determined, in such

manner that a general examination will be held once a year,

in the manner aboveexplained,

for thepurpose

offinding

out the learning of the competitors; that the other requisite

qualifications will be passed on by the examiners each time

a parish falls vacant. j Those who have once passed the an

nual examination will be regarded as worthy, so far as their

learning is concerned, of being appointed to any irremovable

parish that may fall vacant within six years after their ap

proval. On the lapse of six years, however, they must un-

h Cone. PI. Bait. III., n. 36, 52 ;Bened. XIV., De Syn., 1. iv., c. viii., n. 6.

1 Cone. PI. Bait. III., n. 36.

At the Vatican Council the German bishops made this proposal:"

Decre-

tum S. C. Trid. de concursu pro parochiis speciali instituendo in multis ampliori-

bus dioecesibus nunquam in usum pervenit, in multis aliis autem jam approbante

S. Sede Ap. ejusdem loco hodie concursus generalis habetur. Propterca petimus

ut illud S. C. Trid. decretum revision submittatur, et ea examinis sive concur

sus norma praescribatur, quae ubique valeat ac debeat observari" (Martin, Doc.,

p. 172 ; cfr. ib., pp. 144, 174).




dergo the examination again, if they wish to be appointed

to an irremovable parish.1

Irremovable rectors in Ireland are appointed without

the concursus. Thus the Plenary Synod of Maynooth says:1

"Cum per circumstantias hujus regionis concursus quamvis

optandus, vix introduci possit, episcopi diligenter caveant

ne paroeciae conferantur nisi iis, qui a synodalibus exami-

natoribus, si adsint, sin vero, a theologis ab episcopo delectis

approbati fuerint, quique moribus ac scientia caeteris prae-

sterit." Likewise, the irremovable rectors in England are

appointed without the concursus. However, it seems certain

that in the near future the concursus will be prescribed for

the appointment of irremovable rectors in both these coun

tries.

ART. II.

Rights of Parish Priests, and of Rectors, in the United States.

i. General Remarks.

EîT" 649. The following remarks, though applying chiefly

to parish priests proper, are nevertheless, in a measure, also

applicable to our rectors. For all our rectors, even those

who are not irremovable, possess parochial or quasi-parochial

rights" which are laid down partly in the Second Plenary

Council of Baltimore, Nos. in, 112, 117, 227, and also in the

statutes of provincial and diocesansynods."

These rigJits

of our rectors necessarily imply corresponding duties on the

part of their congregations, and other rectors. Thus, for

instance, a rector with us has the right to administer baptism, marriage, the viaticum, and extreme unction to his pa

rishioners. Consequently, the parishioners cannot lawfully

receive the sacraments from other rectors, nor can the rec

tors themselves lawfully administer them to non-parishioners.

k Cone. PI. Bait. III., n. 58; see the Instr. S. C. de P. F., Oct. 10, 1884,

on this general concursus (Cone. PI. Bait. III., p. 203).

1

Syn. PI. Maynut., n. 183. m Konings, n. 1138.

n Cone. PJ. Bait. II., n. 124.




The rights of parish priests relate chiefly to the administra

tion of the sacraments of baptism, penance, the Blessed

Eucharist, matrimony, and Extreme Unction;

to funerals,

parochial functions, etc.

2. Rights of Parish Priests relative to the Sacraments.

650. We premise : Every parish, as was shown, must have

certain fixed limits. By parishioners are meant, as a rule, the

faithful who live within the boundaries of the parish.76

Now,

of these, I, some have a domicilium proprie dictum those,

namely, who have come into the parish with the intention

(manifested) of living there permanently, if nothing should call

themaway

;

2,

others have but aquasi-domiciliitm

i.e., dwell

in the parish for a considerable part of theyear,"

or at least

with the intention of remaining so long v.g., students in col

leges, servant-girls ;

7 &

3, a third class, finally,live in the parish

but temporarily : they are named strangers (peregrini) ;if

they travel from place to place, having nowhere a domicile

or quasi-domicile, they are called wanderers (vagi). We

shall now pass to the several sacraments. I. Rights of ParishPriests relative to Baptisms. Parishioners that is, not only

the faithful who have a domicile, but also those who have

but a quasi-domicile, in the parish are bound, as a rule, to

bring their children to their parish church for baptism ;

"

and they sin mortally by having their children baptized in

another parish without the permission of their parish priest.

Persons who have nowhere a domicile or quasi-domicile

can have their children baptized wherever they wish. A

priest who, except in case of necessity, should presume to

baptize children belonging to another parish, without the

76

Phillips, 1. c., p. 343.77

Bouix, De Judic. Eccl., vol. i., pp. 267, 27578

Hence, a person may have a domicile proper in one place, and at the

ame time a ouasi-domicile in another v.g., persons living in the city duringwinter and in *he country during summer. **

Bouix, De Paroch. p. 441.




permission at least, presumptive of the respective pastor,

would commit a mortal sin. This prohibition is applied to

the United States in the following modified manner: "

Gra-

vissima reprehensione digni sunt sacerdotes, qui infantes ab

aliena sive paroecia sive dioecesi, sibi oblatos temere bapti-

zant, cum facile a proprio pastore baptizari possunt. Abu

sum hunc iterum damnamus ac prohibemus."

651. II. Rights of Parish Priests respecting the Sacrament

of Penance. A parish priest, by virtue of his office, hasjurts-

dictio ordinaria in foro interno in his parish. We say, in his

parish ; for a parish priest, as such, cannot hear (except his

parishioners)in the whole diocese, but only in the confines

of his own parish. In order to avoid difficulties, therefore

it were advisable, accordingto

Bouix,"that each

bishopshould expressly give all his parish priests faculties to hear

in the whole diocese. In many places parish priests are

understood by custom to have jurisdiction in every part of

the diocese. Formerly parish priests possessed exclusively

the right to hear their parishioners. This prerogative has

lapsed.At present the faithful may, without the permission

of their parish priest, confess, even in paschal time or whenin danger of death, to any priest, secular or regular, who is

approved by the bishop.82 Has the parish priest a right to

demand from his parishioners presenting themselves for holy

communion in paschal time a certificate as to their having

made their confession to an approved priest ? We answer :

i . Wherever this is not prescribed by the ordinary a parish

priest cannot exact such certificate, except from those

parishioners whom he may, for grave reasons, suspect of not

having gone to confession, even though they assert the con

trary. In giving this certificate the confessor should merely

state the fact of the confession having been made, but not

* Cone. PI. Bait. II., n. 227 ;our Notes, n. 202-205.

81L. c., p. 44$

"




of Parisk Priests. 453

whether absolution was given.83

2. The above, as is evi

dent, applies to countries only where there are canonical

parish priests, and where, consequently, the faithful are

bound to receive their paschal communion in their parish

church, but not to the United States, where the faithful can

make their Easter communion everywhere.

652. Confessors in the United States. i. As our rec

tors, even those who are irremovable, are not canonical

parish priests, it would seem that they cannot hear their

parishioners outside the diocese.84

2. Formerly, according

to an agreement among our bishops in 1810, a priest ap

proved for one diocese could hear confessions all over the

United States.85

This agreement no longer exists. Hence,

at present, no priest can hear out of the diocese for which

he is approved/ 3. All our priests i.e., assistants no less

than pastors are, as a rule, approved for the whole

diocese.

653. III. Rights of Parish Priests in regard fj the Ad

ministration of the Blessed EucJiarist. I. Whf/e there are

canonically-established

parishes

the faithful are bound to re

ceive the paschal communion in their parish church /87

if they

communicate elsewhere without the permission of their

parish priest, they do not fulfil the precept of the Church.

From the obligation of receiving the paschal communion in

the parish church are exempted chiefly : i. Strangers (pere-

grini, advenae) who cannot conveniently go to the place

of their domicile.2.

Wanderers or tramps (vagi}.

66

Thesetwo classes are not even bound to receive their paschal

communion in the parish where they are, but can satisfy the

precept by communicating in the churches of religious.*1

3. Seculars employed as servants in monasteries and reli

gious houses, provided they be in actual service, residing in

MBouix, 1. c., p. 447.

MKenr., tr. xviii., n. 133.

* Cone. PL Bait. II., n. 118. **Konings, n. 1394.

"

Supra, n. 430.

*Craiss., n. 1358.

" O Kane, n. 759




the houses of the religious, and living under obedience to

the regular prelate. We say, living under obedience, etc.; by

this we do not mean the obedience due by religious profes

sion,90

but simply the obedience due ratione famulatus i.e.,

the obedience which servants, as such, owe to their masters.91

Whether seculars who reside permanently in religious houses,

as in places of retreat, can fulfil the paschal precept in thosehouses without the permission of the parish priest is ques

tioned by some. As to students in colleges conducted by

religious, see n. 431. At present the faithful, with the excep

tion of their Easter communion, can receive the Blessed Sac

rament in any church or public chapel. Hence, regulars can

distribute holy communion in their churches to seculars dur

ing the whole year, even during paschal time, except Easter

Sunday alone nay, in the United States, even on Easter

Sunday. For, with us, the faithful almost everywhere can

make their paschal communion where they please.

654. Observation. We just said, almost everywhere ; that

is, except in certain parishes of California. For in this

State the faithful and rectors of those parishes which are

regarded as canonical parishes (though the rectors in charge

of them are not canonical parish priests) are mutually bound

by all the duties of parishioners and parish priests proper, as

laid down by the jus commune. Hence, the former must re

ceive their paschal communion in their parish church. This

is evident from these words of the fathers of the First Pro

vincial Council of San Francisco : Declaramus rectores earum

paroeciarum, quae habentur uti paroeciae proprie dictae, teneri

ad omnia munia parochorum erga fidelesintra limites suarutn

ecdesiarum constitutes adimplenda ; fideles autemjus Jiabere ad

subsidia spiritualia ab illis ecu a propriis animarum rectoribus

vecipiendum>ac specialiter teneri ad ipsos recurrere pro commu-

tioi e paschali, baptismo, viatico. extrema unctione, et matrtmo-

nipra, n. 431."

Bouix, De Jure Reg., vol. ii., p. 201




nio. From these words it would seem to follow that the

above pastors are obliged to offer up Mass for their people

on Sundays and holidays, and that they can validly and law

fully hear their confessions everywhere.02

655. II. Sacrifice of the Mass. According to the pre

sent discipline of the Church, the faithful are not bound,

though they shouldbe

strenuously exhorted,to

hear Masson Sundays and holidays of obligation in their parisJi cliurch

Parishioners, therefore, can satisfy the precept of the

Church by hearing Mass in any church, public chapel, or

even in the private chapels of regulars, but not in the pri

vate or domestic chapels of seculars.1 4

In the United

States the faithful fulfil the precept by assisting at the Holy

Sacrifice anywhere**

656. Q. Can a parish priest celebrate two Masses on the

same day (binatio, binare} ?

A. I. Universal Discipline of the Church or Provisions of

the Jus Commune on this head. Formerly priests were al

lowed to celebrate several times a day. But, at present,

this is prohibited, except (a)on Christmas (b)

and in the

case of necessity. Now, what can be regarded as cases of

necessity ? We answer by the following propositions :

Prop. I. Many cases whicli were formerly considered by canon

ists as cases of necessity cannot be considered as such at tJie pre

sent day. Thus, canonists formerly held that a priest could

say a second Mass on the same day v.g., for the accommo

dation of strangers, princes, or bishops arriving too late for

the first Mass. This opinion is no longer tenable.98

Prop.

II. Prescinding from extraordinary occurrences, tJiere is at the

present day only one practical case of necessity authorizing the

"

binatio"

namely, (a)when either an entire congregation, or

( )a large portion of a congregation, is debarred from Jiearing

MKonings, vol. i., p. 471, edit. za.

"

Supra, n. 430.

M

Bouix, 1. c., p. 196.

9S

Kenr., tr. iv., p. ii , n. 14..

**

Bouix, De Par., p. 451.



45 6 The Rights and Duties

Mass on Sundays and holidays tmlcss the pastor says two Masses

on the same day. We say, I, an entire congregation; hence, a

pastor who has two parishes at so great a distance from

each other that the people in one of the places cannot con

veniently go to the other place for Mass can say two Masses

a day, one in each parish.97 We say, 2, or a large portion, etc.;

hence, a pastor can say two Masses a day in the same church,

if, v.g., three hundred parishioners are otherwise deprived

of Mass v.g., because the church is too small to hold the

entire congregation at the same time. We say, 3,on Sun

days and holidays; that is, the necessity for saying two

Masses can occur on those days only on which the faithful

are bound to hear Mass, but not on week-days, nor on Holy

Thursdayor Good

Friday.Observe

that,as a

rule,the

permission of the bishop is required for the binaiio even in

the above circumstances. But is the bishop s permission

sufficient, or is that of the Holy See necessary, at least when

the two Masses are to be said in the same church ? Bouix"

holds against the Analecta J. P. that no Papal permission is

requisite. For the binatio, in the case of necessity, is per

mitted by thejus commune itself."

657. II. Particular Discipline {jus speciale, particulare],in

this matter, of the Church in the United States and Countries

similarly circumstanced. So far we have shown in what

cases canonical pastors can celebrate twice a day by virtue

of the jus commune, and therefore without a Papal indult.

Now, can rectors or priests in the United States celebrate

twice a day under conditions less stringent than those pre

scribed by the/zAJ commune ? They can; for bishops in the

United States,100

Ireland,101

England,109

and, in fact, almost

97Bouix, De Par., p. 453.

9 &

L. c., p. 456.

**

Namely, by the decretal Consuluisti (issued by Pope Innocent III. in

1212), which still has the force of common law, as it was never revoked by

any subsequent pontifical decree.

100

Fac.,form,

i.,

n.23.

101

Syn.PI.

Thurles., ap.Coll.

Lac., ni., p. 781" Cone Prov. Westmon. I., A.D. 1852 ; ap. Coll. Lac., Hi., p. 933.




everywhere, have special faculties from Rome to allow of

binatio. Now, it is evident that, by these faculties, the above

bishops have fuller powers on this head than they have by the

jus commune ; otherwise, such faculties were useless, since

they would confer upon bishops no powers not already vested

in them by the jus communed Hence, the above bishops can

allow binatio in cases where it is not permitted by the common law. Thus, priests in the United States and the above

countries, by episcopal permission, can say two Masses a

day v.g., not only when a great (v*g-, three hundred per

sons), but when a considerable, number of persons (v.g:, thirty)

would otherwise be deprived of Mass on Sundays and holi

days v.g., because they live too far from church, or be

cause some must stay at home while the others go to Mass.

Observation. A parish priest proper i.e., one who is bound

to offer up Mass for his people on Sundays and holidays

cannot receive a stipend for any of the Masses when he cele

brates twice a day.104 We say, I, parish priest ; because

other priests, not in charge of souls (v.g., assistants), can un

doubtedly accept of a stipend for one Mass on Sundays as

well as on week-days. We say, 2, parish priest proper ;

hence, rectors in the United States,105

not being canonical

parish priests, are exempt from the obligation of celebrating

for their congregations, and therefore can accept of a sti

pend for one Mass on Sundays and holidays ; nay, at present,

according to Konings (n. 1327, q. 7, ed. 3ia

), by Papal in-

dult, all bishops of missionary countries can, for grave and

just cause, allow priests, when they say two Masses a day,

to receive a stipend for each Mass. (C. PI. Bait. III.,n. 105.)

658. IV. Rights of Parish Priests in regard to the Sacra

ment of Matrimony RigMs of Parish Priests proper in places

101Cfr. Instr. S. C. Prop., May 24, 1870, n. n seq , ap. Konings, p. Ivi.

""

Bouix, 1. c., p. 459. He can, however, accept of an honorary in compen-

tationem la -on s of the second Mass (Bouix, 1. c.)

" As to California, see supra, n. 654.




where the Tridentine Decree "Tamrtsi" is in force. Wher

ever the decree Tametsi is published marriages, in order

to be valid, must be contracted in presence of the parochm

proprius of the contracting parties.10

Now, by the parochus

proprius is meant : I. The parochus domicilii i.e., the one in-

whose parish the parties have their domicile, but not the

parochus originis,

or the one in whoseparish they

were

born. Hence, if the parties belong to two different parishes,

they may be married by the parish priest of either parish

The same holds true if one of the parties has two places ot

domicile. It is more becoming that the marriage be solemn

ized by the pastor of the place to which the bride belongs.

2. The parochus quasi-domicilii ; hence, public or government

officials, professors, and students, who have a quasi-domicilein

a certa ; n place, may validly contract before the pastor of such

place.The same holds of soldiers, servants, boys and girls

in asylums.108

Youths in colleges and girls educated in con

vents may contract before the pastor in whose parish the

college or convent is situate, though the proper course is

to send them home, so that they may marry where their

parents reside.109

Vagi i.e., those who have nowhere a

fixed domicile can contract in presence of the parish priest

of the place where they are for the time being ;this holds

even though but one of the parties is a vagus. 3. The

bishop, vicar-general, and vicar-capitular ; these dignitaries

can assist validly at marriages throughout the whole dio

cese. The chief rights of the parochus proprius are : (a) To

publish the banns of matrimony. This law is in force also

106 Cone. Trid., sess. xxiv., c. i., d. R. M.itr.

wCfr. Feiie, De Imp. et Disp. Matr. Lovanii, 1874 In the Council of the

Vatican a proposal was made by a number of French bishops to the effect that

the inipedimentum clandestinitat.s be somewhat modified, so that in future the

presence of the parochus proprius would be required merely for the lawfulness,

rot .ie validity, of marriages, and that marriages contracted before any priest

ft d be valid ^Martin, Arbeiten, p. 103;

Doc., p. 157).

Philips, Lehrb., p. 618.]09

Feije, 1. c., n. 232.ll

Ib., -a 23*




in the United States.111

If the parties belong to two dif

ferent parishes, the proclamations must be made in both. A

pastor with us, therefore, who omits the proclamations with

out grave reasons, is guilty of mortal sin. (b) To bless (bene-

dictio mtptialis) and assist at the marriage, (c] To receive

the offering usually made by those who are married, even

though another priest has been deputed by him to solem

nize the marriage.112

659. Rights and Duties of Rectors in the United States re

specting Marriages. It is certain that the Tridentine decree

Tametsi is not promulgated or observed in most of the dio

ceses throughout this country ;

113wherefore marriages with

us, except, of course, where the decree Tametsi obtains, con

tracted by the sole consent of the parties, without the pres

ence of the rector or any other priest or witnesses, are

valid, though illicit. The right to assist at marriages

and to impart the benedictio nuptialis belongs always to the

rector of the contracting parties.Hence rectors with us

are strictly forbidden to unite in marriage parties belonging

to another diocese or parish.

14

Andif a

pastor,in case of

necessity, marries outside parties, he should remit the per

quisites to the respective pastor of the parties. Acco-rding

to the Boston statutes, this is to be done ex titnlo justitiae.

\J~ Q. In what parts of the United States does the

decree Tametsi obtain ?

A. We premise: The decree Tametsi may become obli

gatory in a place in two ways namely, either by a formal

or by a virtual promulgation. By the formal promulgation

is understood that which is laid down in the Council of

Trent (sess. xxiv., c. i., De Ref.). By virtual promulgation

is meant the very fact of the observance of the decree in a

place where it has not been actually published. Conse-

111

Cone. PI. Bait. II., n. 332, 333.

"* Bouix. 1. c..

p.464.

118 Cone. PL Bait. IL, n. 340.m Cone. PL Bait. II., n. 117.




quently the decree becomes binding not only where it has

been formally published, but also where it is being observed,

without having been promulgated (cf. Konings, n. 1605 J

Sabetti, n. 911).

We now answer: We have said that the decree in question is not in force in most of our dioceses

;for in some it is

in force. Prior to the Third

Plenary

Council

of Baltimore,held in November, 1884, there was considerable doubt and

uncertainty as to where the decree did and where it did not

obtain. The Third Plenary Council, at the request of the

Holy See, carefully investigated the whole matter, and came

to the following conclusion :

I. The decree Tametsi (C. Trid., sess. xxiv., c. i., De Ref.)

does not obtain in the following ecclesiastical provinces: i,

Baltimore;

2. Philadelphia ; 3. New York; 4. Boston

; 5.

Oregon; 6. Milwaukee; 7. Cincinnati, save in the diocese of

Vincennes;

8. St. Louis, except in the city of St. Louis itself

and several other places of the same archdiocese given

below; 9. Chicago, except in some places of the diocese of

Alton to be mentioned presently.

II. The decree Tametsi is considered as being in force in

the rest of the United States namely, i, in the entire province of New Orleans; 2, in the province of San Francisco,

together with the Territory of Utah, save that part of the

Territory of Utah which lies east of the Colorado River; i-

&

_/

in the province of Santa Fe, save the northern part of Colo

rado; 4, in the diocese of Vincennes; 5, in the following

places of the archdiocese of St. Louis in the city of St.

Louis, and in the places called St. Gene vieve, Florissant, and

St. Charles; 6, in the places called Kaskaskia, Cahokia,

French Village, and Prairie du Rocher, all four in the dio

cese of Alton. See the Third Plenary Council of Baltimore,

p. cvii, which also enumerates the places, with us, to which

the Declaratio of

Pope Benedict XIV., issued for Holland,in

1/41, has been extended.




660. How should pastors, especially in the United States,

proceed when strangers (peregrini} and wanderers (vagi) pre

sent themselves for marriage? I. Where the universal law of

the Church on this head can be observed, a certificate de

statu libero of the parties wishing to get married should be

procured from the ordinary to whose diocese they formerly

belonged. This certificate should be attested both by the

above ordinary and the ordinary of the pastor before whom

the parties wish to get married.1 * A pastor, therefore, to

whom vagrants or strangers present themselves for marriage

must refer the matter to his bishop, whose duty it is to pro

cure the necessary certificate.1 - A neglect of these pre

cautionary measures would not, however, annul the mar

riage. 2. In the United States the law prescribing the

above mode of procedure is, per se, binding.117

Hence, it

should, wherever feasible, be carried into effect. In most

cases, however, it can scarcely be observed; for, with us, no

small number of strangers presenting themselves for mar

riage have come from nearly all parts of the globe, even the

most distant, or are constantly moving from one State to

another, thus making it almost impossible to procure from

their former ordinary the above certificate based upon the

testimony of competent witnesses.118

Hence, there are

scarcely any other means, with us, of ascertaining the status

liber (i.e.,the absence of any annulling impediment, especial

ly of the impedimentum ligaminis} of strangers than, I, their

own sworn affirmation; 2, the testimony of others who know

them, or of their former pastor in another (i.e., neighboring)

diocese.119 A pastor, therefore, with us, before solemnizing

the marriage of such parties, should assure himself that they

are in statu libero i.e., not actually married or under any an-

116Instr. S. Off. in 1670 and 1827.

"

Feije, 1. c., n. 254, 25$

117Cfr. Feije, 1. c., n. 258.

118 Kenr., tr. xxi., n. 193 ;cfr. Heiss, p. 181. Monach., 1861.

u &

Cfr. Feije, 1. c., n. 261.



;62 The Rights and Duties

nulling1

impediment"* either by making the parties themselves take an oath to that effect, or by enquiring of parties

who know them, or by writing for information to their

former pastor, according as the case or circumstances

admit of one or more, of this or that one, of these evi

dences. Where any doubt still remains, the bishop should

be consulted. Kenrick1S3

holds that a priest, in the United

States who marries parties actually belonging to other

parishes is, ipso jure, suspended (ab officio only, not a bene-

ficio}, and remains so until absolved by the ordinary of

that pastor who ought to have been present at the marriage.

According to Feije,"

however, the suspensio just mentioned

is incurred only in places where the decree Tametsi is pro

mulgated, and therefore not at least, de jure commune in

most dioceses of this country. The right to administer Ex

treme Unction and the Viaticum to parishioners is reserved

to the parish priest in such manner that other priests can

not, except in case of necessity, licitiy confer these sacra

ments without the pastor s or bishop s permission. Strangers

may receive both these sacraments from the priests of the

placewhere

theylie ill.

| 3. Rights of Parish Priests relative to Funerals Customs in

the United States.

661. The rights on this head may be reduced chiefly to two

namely, the right, i,to bury or have a burying-ground (jus

fepeliendi] ; 2, to receive certain emoluments or burial dues

Jura funerarid).I.

Rightto

Performthe Burial. The

parish priest has, de jure commune, the right to demand that,

is a rule, his parishioners be buried in the parish ceme

tery.1 " We say, as a rule ; for the following persons can be

buried out of their parish cemetery: i. Those who have se

lected their place of burial elsewher" Now, all persons,

"

Cfr. Feije, 1. c., n. 256, 259.

"

L. c. 1M Ib., 1. c., n. 283. w L c. Phillips, i. c., p. 725




except impuberes and religious,1 "

are perfectly at liberty to

choose their place of interment in any Catholic cemetery

i.e., not only in cemeteries attached to parochial churches,

but also in such as are annexed to non-parochial churches, col

leges, and other institutions. For, although parish churches

alone can, de jure ordinarto, have cemeteries, yet any non-

parochial church, college, etc., maybe authorized

bythe

bishop to have a cemetery. Religious communities are em

powered by the jus com. to have cemeteries. 2. Those who

have a family lot (sepulcrum gentilitium, sepulcrum majorum) in

another Catholic cemetery ;

mthese not only can, but should,

be buried in such lot. In the United States Catholics may

sometimes be buried in their family lots, even though situate

in sectarian or profane cemeteries. Thus, a deceased convert may be interred in a lot owned by his non- Catholic

relatives and situate in a sectarian or profane cemetery.

The same applies to those deceased persons whose relatives,

though Catholic, (a) have, in good faith, purchased a lot in a

non-Catholic cemetery, or (b) own one in such cemetery

from the year i853.n8 The Third Plenary Council of Balti

more (n. 317, 318) enacts that in all these cases, where

the burial takes place in a non-Catholic cemetery (a),the

funeral services of the Church can be performed by the rector,

and that either in the church or at the house, unless the

bishop orders the contrary ; (b] and that the grave, in the

case, should be blessed.

662. II. Right of Receiving Emoluments. Funeral dues

are of two kinds, according as they are given to pastors

(a) for performing the funeral rites, or (b) for the grave or

lot (locus sepulturae, sepultura, fundus}. I. Dues for Funeral

Services. It is certain that nothing can be demanded from

the poor, nor, as a rule, even from others, except for extraor

dinary funeral services, such as High Mass de requiem. We

125Religious should be buried in the community graveyard.

126Laics, however, cannot select their place of burial in the cemeteries of

nuns, except by special leave from Rome (Craiss., n. 1396).

121Walter, 320.

lis Cone. PI. Bait. II., n. 392.



464 The RigJits and Duties

say, as a rule ; for where it is customary, pastors may re

ceive nay, even demand, from persons able to pay the

usual dues, even for performing the ordinary funeral ser

vices, as given in the Ritual i.e., without a Mass, etc.131

In

the United States pastors do not, as a rule, receive anything

for reciting the ordinary funeral services of the Ritual; they

are, however, liberally compensated for"

extraordinarv fune

ral services," such as solemn Masses for the dead. 2. Dues

for Place of Interment. According to the jus commune, it is

forbidden, as a rule, to charge, or even receive,132

anything

for graves, except where the cemetery is not yet blessed.

We say, as a rule ; for when graves are located in a more

desirable part of the cemetery, it is allowed to charge some

thing

for them,though only

on account of their choice loca

tion (ratione Jionorabilioris situs, scu dignioris loci). From this

it is evident that the practice in the United States of making

the faithful pay for single graves,133

no matter in what part

of the cemetery they may be located, is scarcely in harmony

with the universal law of the Church. The necessity of pay

ing for cemeteries and keeping them in a proper condition

would seem to somewhat justify the custom. According to

Konings,134

all difficulty will be obviated either by asking for

payment of the grave only after the interment, or, what

seems better (as people seldom pay after the interment), by

setting apart in rach cemetery a special place for the poor

and those who do not wish to pay ; thus, the remainder of

the cemetery becomes at once a more eligible site for graves,

which, consequently, can be lawfully sold, though not abso

lutely.135

Where deceased persons in the United States are

131Craiss., n. 1426; cf. Bouix, 1. c., p. 486.

132

Except where money is -voluntarily given. Ferraris, 1. c., n. 156.

" 3 We say, single graves : for it would seem that, practically speaking,

gular charges can be made for family lots (sepulcra gentilitia)

134N. 356, (4) ;

cf. Kenr., tr. xii., n. 69.

m The faithful, by purchasing graves or family lots, obtain merely the

right to be buried there, to the exclusion of other parties iFerr., 1. c,n. 147, 148).




buried either outside their parish or in a different place from

that where they died, the funeral services are sometimes

held in both places i.e., in the place of death and also in

the place or church of interment. This is not unlawful,

though it is sufficient to hold these services in the church

whence the burial takes place.138

4. Rights of Parish Priests respecting Parochial Function*

and Dispensations.

663. I. Parochial Functions. Besides the administration

of certain sacraments, there are other ecclesiastical functions

performable by pastors only or with their consent. They are

called jura parochi privativa, functiones mere parochiales, in

contradistinction to the jura parochi cumulativa, functiones

mere parochiales, or those functions which rectors, as such,

have indeed the right to perform, but not to the exclusion

of other persons. The churching of women, for instance, is

an exclusive right of the rector, where custom or diocesan

statutes so ordain, while the celebration of solemn Mass on

Holy Thursday belongs also to others.137

II. Power ofgrant

ing Dispensations. It is the common opinion that, by virtue

of general custom, parish priests can, for just cause dispense

their parishioners individually, though not collectively, from

the precept of fast.138

They can also give them permission,

though only for a time and for particular cases, to perform

servile labor on holidays of obligation. As a rule, persons

obliged to work publicly on holidays, even when there arc

undoubted reasons for so doing, should first obtain permis-

""

Craiss., n. 1414, 1430.m

Bouix, 1. c., p. 490 ; Phillips, I. c., p. 345.

188In the Vatican Council a proposal was made by a number of French

bishops, the import of which was that the present ecclesiastical laws respect

ing fasts and abstinence (the observance of which, it was alleged, was at pre

sent so different not only in different countries, but also in different provinces

nay, in the several dioceses of the same province) be made more uniform ind

us lenient as possible (Martin, Arb., p. ro8; Doc., p 161}.




sion from the pastor orbishop."

8

Observations. i. Our

bishops may in fact, usually do by virtue of pontifical in-

dult, give their priests power dispensandi quando expedire

videbitur, suêr esu carnium, ovorum et lacticiniorum tempore

jejuniorum et quadragesimae.1

2. The faithful with us, whet

compelled to labor on holidays, or even on Sundays, do not,

as a rule, askpermission

from thepriest, though they

should

be admonished to do so.

ART. III.

Duties of Rectors, especially in the United States.

664. I. Profession of Faith. Irremovable parish priests

are bound,141

within two months at the latest from the day

of their obtaining possession of their parishes, to make a

public profession of their faith (profcssio jidei] in the pre

sence of the bishop, and to take the oath of obedience to

the Roman Pontiff, according to the formula laid down by

Pius IV.142 We said, irremovable parish priests. Now, accord

ing to some canonists, removable parish priests are also, jure

com., obliged to make this profession ;

u3

according to others

they are not.144

It seems certain, therefore, that those rectors,

at least in the United States, who are irremovable, are bound

to make the above profession of faith.

665. II. Duty of Residence. I. Parish priests are bound

at least, jure ecclesiastico, and that sub gravi to reside in

their parishes. We say, at least, etc.;for whether they are

obligated also jure divino is a disputed question. II. What

parish priests are obliged to residence ? i. Both removable

and irremovable pastors ; 2, administrators of parishes that

is, priests placed in charge of vacant parishes until new pas-

139

Craiss., n. 1437.14

Fac., form, i., n. 27.

141

Cone. Trid., sess. xxiv., c. xii., d. R.

14a

Bouix,1.

c., p. 513141 De Camillis, Inst. T- C., t. iii., p. 248.

144Craiss., n. 1446.



of Parish Priests.4g-

tors are appointed ; 3, assistants (coadjutores) given to pastorswho are unable, by reason of sickness or old age, to dis

charge their duties; 4, other assistants are not bound by the

law of residence, though they should not be absent without

the permission of the pastor or bishop. III. For certain

causes rectors may, at times, be absent from their parishes.

Now, what are these causes? i. For an absence of morethan two months a causa gravis is required, such as ill-health,

Christiana cantas^ etc. 2. For an absence of only two

months, whether continuous or interrupted, any reasonable

cause {causa aequd] v.g.\ the need of recreation is suffi

cient. IV. Besides a legitimate cause, the permission of

the bishop, in writing, is

necessary,

and that even for an ab

sence of one week. If, however, a pastor is obliged to

absent himself without having time to ask for permission, he

may go away, provided he leave some approved priest in

his place or request a neighboring pastor to attend to sick-

calls and the like, and inform the bishop, as soon as possible,

of his absence.145

V. According to St. Liguori, parish

priests teaching theology, Sacred Scripture, or canon law in

public institutions v.g., in diocesan seminaries may proba

bly be excused from the law of residence, as such teachingredounds to the good of the whole diocese nay, of the en

tire Church. The duty of residence, which is particularly

urgent during contagious diseases, comprises not only the

obligation of physically dwelling in the parish, but also that

of laboring for its good. Hence, a pastor cannot leave all

the parochial duties in the hands of his assistants, but must

personally, unless lawfully hindered, perform some, especial

ly, of the more important ones, such as preaching, adminis

tering the sacraments.147 He may, however, require his as-

"

Supra, n. 545. What has been said (supra, n. 544-549) concerning the

residence of bishops applies in most particulars also to the residence of"

pas.tors (Bouix, 1. c., p. 518). Craiss., n. 1461, 1462.

147

Bouix, 1. c., p. 542.




sistants to attend to the more arduous duties, such as sick,

calls at night, attending to out-missions. As a rule, pasters

should reside within the limits of their parishes nay, in the

parochial house, if there be one. VI. Penalties of Unlawful

Absence. Pastors absent more than two months in the year

without sufficient cause forfeit, ipso facto,"*their salary, in

proportionto the time of their absence.

Accordingto St.

Liguori, however, they forfeit only a part, not the whole, of

their salary for the time they were unlawfully absent;for

they receive their income not merely for residing, but also

for saying the office and performing other duties. VII.

Residence of Rectors in the United States. The law of resi

dence, as was seen, binds not only irremovable pastors, but.

in general, all priests having charge of souls, and hence also

our rectors.149

Diocesan statutes, with us, usually require that

rectors should, if possible, obtain the bishop s leave when

ever they are to be absent for an entire week at a time.160

666. III. Obligation of offering up Mass for the People ; of

Preaching; of Catechising the Children; and of taking care of

the Parochial Schools. I. Obligation of Saying Mass for the

Parishioners. Canonical parish priests (secular or regular),

even though amovibiles ad nutum, vicars (vicarii curati} of

parochi principals, and priests (vicarii temporales) placed in

charge of vacant canonical parishes until a new rector is ap

pointed, are bound on Sundays and holidays of obligation to

gratuitously offer up the sacrifice of the Mass for their peo

ple. This obligation attaches, generally speaking, also to

parish priests in Ireland and Canada,161 but not (except in

some parts of California) to rectors in the United States.1 "

148

Hence, they cannot in conscience draw or retain such salary, but mutt

apply it to the church or the poor of the place.

M* Cone. PI. Bait. II., n. 114 ; Kenr., tr. viii., n. 43.

"*

Stat. Dioec. Nov., p. 13 ;Dioec. Boston., n. 217.

Ul

C Prov. Quebec. II., an. 1854; ap. Coll. Lac., iii., p. 654."*

Supra, n. 654, 657.




In Ireland, however, bishops, by virtue of faculties granted

them by the Holy See, Aug. 6, 1876, for ten years, can

dispense parish priests from the obligation of saying Mass

for their people on suppressed holidays, or those on which the

faithful are no longer bound to hear Mass.1 " We may here

add that bishops cannot compel, though they may exhort,

pastorsto furnish

priests wishingto

sayMass in their

churches with those things which are necessary for the cele

bration, such as altar-wine and the like.164

II. Duty of

Preaching. Rectors, even when they are not canonically

irremovable, are bound, on Sundays and solemn feasts,

either personally or, if lawfully hindered, by others, to

preach to their people.155

Sermons should be brief and

plain i.e., adapted to the capacity of the parishioners. It is

the common opinion that rectors who do not, either person

ally or through others, preach for one continuous month, or

for three non-continuous months, in the year, sin grievous

ly.

158

Sometimes, however, rectors may omit sermons in

order to make up for them at a more opportune time.

Thus, it is the custom in some parts of the United States to

discontinue preaching for about two months every summernamely, in July and August. Whether the excessive heat

of these months can justify the above practice we leave to

others to decide. III. Duty of Catechising the Children.

Pastors should also, on Sundays and festivals, instruct the

children in the rudiments of the faith (dactrina Christiana},

or, as it is called with us, in the catechism. In the United

States, as elsewhere, this is done usually in Sunday-schools(scholae doctrinae Christianae], held, as a rule, every Sundayafternoon in the church or school-house.

157

The pastor, if

lor just cause hindered from personally holding Sunday.

school, may appoint competent persons to take his place.

188

Syn. PI. Maynutiana. n. 69, 187 ;ib. in App., p. 300.

***

Supra, 594 (2)."

C. Trid., sess. v., c. ii., d. R.

Craiss.,n.

1500."




470 The Rights and Duties.

in this country, as a rule, lay persons, male and female, act

as Sunday-school teachers. Yet, owing to the difficulty of

obtaining competent and painstaking lay teachers, our rec

tors are exhorted to personally hold, or at least superintend,

Sunday-schools. This holds true especially where there are

no parochial day-schools.15

Moreover, children, with us,

that have not yet made their first holy communion should,

at stated times during the year (v.g. y during the Ember

days), be instructed by the pastor, and thus prepared either

for confession or for their first holy communion.11 9

IV.

Duty relative to Catholic Day-ScJiools. Experience teaches

that the public or comnion schools in the United States,

owing to their very system, the text-books used, and the

class of children frequenting them, in most cases endanger

both the faith and morals of Catholic children sent to

them.160

If possible, therefore, a Catholic parochial day-

school, where not merely secular knowledge, but also reli

gious instruction, is imparted to the children, should be

168Cone. PI. Bait. II., n. 435, 438

159Cone. PI. Bait. IL, n. 442

180

Ib.,n.

426-430;

cfr.Syll., prop. 48. The schema (c. xv.) of the Council of

the Vatican" De Ecclesia" proposed: "Inter sanctissimorum jurium viola-

tiones, quae nostra aetate . . . perpetrantur, ilia est vel maxi ne perniciosa

qua fraudulent homines contendunt, sc/iolas omnes directioni at urbitric solius.

potestaiis laicae subjiciendas esse. . . . Quin eo usque progress sunt, ut Ipsam

Catlwiicam religionem a publica educatione arêre, atque univtrsim sikolas nulliu*

professionis religiosae \v.g., the public schools in the United States], sed litte? et

nas tantummodo esse debere dicant. Contra hujusmodi sanae doctrinae morum-

que corruptelas, ex ipso fine Ecclesiae ... ah omnibus agnosccndum est

jus et officium, quo ipsa (Ecclesia) pervigilat, ut juventus Catholica in primis

vera fide et sanctis moribus rite instituatur. . . . Quare declaramus et doce-

mus, jura praedicta atque officia ad Ecclesiam pertinere "... (Martin, Doc.,

p. 47). In connection with this schema a proposal (postulatuni) was made in

the Vati an Council that all mixed s^liools (called common or public sch oh ID

the United States), without exception, should be declared pernicious and

condemnable by the Vatican Council (Martin, Arb., p. 76; Doc., p. QO>

Cfr. Instructio De Schol. Publ. in Feeder. Stat. Americae Septentr., Nov. 2<*

1875, in Append., p. 432.




established in every congregation. The pastor should fre

quently visit it and see that it isefficiently managed.

161

667. IV. Rig/tts of Rectors respecting the Administration

of the Temporalities of their Congregations, Church property

is, both by ecclesiastical and divine right, exempt from the

jurisdiction of the civil government. Hence, i, laws enact

ed, v.g., by legislatures in the United States, incapacitatingChurch corporations from acquiring more than a certain

specified amount of property, are null and void.102

2.

Church property should, as a rule, be exempt from taxa

tion.163

3. Rulers confiscating such property as belongs to

ecclesiastics by reason of their churches or benefices incur,

ipso facto, excommunication, reserved at present, spcciali

modo, to the Pope, according to the C. Ap. Scdis of Pius

IX.164

Civil governments may, however, obtain, by conces

sion of the Holy See v.g., by concordats a certain share

tn the administration of Church property.

668. What can or should a rector do in regard to tlie

management of the temporalities of his congregation ? I. Heshould make an inventory of all goods belonging to the

Church, a copy of which should be sent to the bishop to be

filed in the episcopal archives;another should be preserved

among the records of the parish. According to the C. Ap.

Sedis of Pius IX., it is, generally speaking, forbidden, under

pain of excommunication latae sententiae to alienate(i.e., to

sell, mortgage, lease for more than three years, etc.) Church

property, movable or immovable166

or, as others express it,

ecclesiastical immovables (bona eccl. immobilia) and valuable

movables (mobilia pretiosd)I6:

without permission from the

Holy See. We say, (a) generally speaking ; for ecclesiastical

161Cone. PI. Bait. II., n. 431.

& 3Cfr. Konings, n. 620, 621.

141

Phillips, 1. c., p. 431.1M

Com., n. 64, 65 ;Avanz. (n), pp. 82, 83.

" Com,n. 129, 130. This excommunication, not being reserved, is absolv-

by any ccnfessor.169


Ferraris, V. Alienare, art. i., n. 3.




things may be alienated without Papal leave v.g., if thev

are of little or no use, if recourse to Rome is difficult, etc.

We say, (b~) of considerable value; for things, both movable

and immovable, worth, v.g. t only $25, or, according to some,

$100, may be alienated by leave from the bishop.168

Whether

the above law, requiring the pontifical permission for the

alienation of Church property, has, by virtue of custom to

the contrary, ceased to be obligatory outside of Italy, seems

a disputed question.v>9

Does it obtain in the United States

It does, with regard to all alienations involving a sum greaterthan $5000." As, however, it. would be difficult, consideringour peculiar circumstances, to have recourse to the HolySee every time an alienation involving more than $5000 were

to take place, the Holy See, by decree datedSept. 25; 1885,

granted to all our bishops, for ten years from the day of the

promulgation of the Third Plenary Council of Baltimore, a

dispensation from the obligation of obtaining the Papal permission. (Cone. PI. Bait. Ill,, p. ciii.) 3. Apart from these

restrictions, the pastor is the administrator exofficio (admin

istr. natus) of the property of his congregation. His rights,

however,in this

matter are always subordinate to the authority of the bishop, to whom belongs, as the Third PlenaryCouncil of Baltimore (n. 272) says, the "

tutela et superior ad-

ministratio bonorum dioecesanorum," and whose duty, there

fore, it is to see that in each church and ecclesiastical or piousestablishment of his diocese, the church property shall be

wisely administered. The rector must, therefore, give in a

financial statement when required to do so, and, in general^

observe the regulations of his ordinary concerning the ad

ministration of Churchproperty, so long as they do not

conflict with the general laws of the Church or the enact

ments of the Popes.171

The Third Plenary Council of Balti.

more (n. 272) enacts that all rectors in the United States shall

168Craiss., n. 1507, 2915.

J69Craiss., n. 2922-2925.

C. PI. Bait. III., n. 20. wiBouix, 1. c., p. 600.



Rights and Duties of Parish Priests. 473

give the bishop a financial statement every year. II. Can the

management of the temporalities ofparishes be committed to lay

men v.g., to trustees, as in tJie United States? It can, pro

vided these men are appointed by ecclesiastical authority.

Rectors in the United States should not appoint their lay

trustees without the consent of the bishop.172

Again, apart

from the ordinary expenditures, trustees (aeditui, matricu-

larii, procuratores, magistri fabricae], with us, cannot, for any

special object, make outlays exceeding- $300 without the

written permission of the bishop.173

Moreover, lay trustees

and others, with us, appropriating Church moneys or prop

erty to their own uses174

incur, ipso facto, excommunication

simpliciter reserved to the Pope according to the C. Ap.

Sedis of Pius IX. m For other rights and duties of lay

trustees;the mode of their appointment ;

their qualifications,

meetings, etc., see the excellent regulations made by the

Third Plenary CouncilofBaltimore, n. 284-287.

669. V. Several otJicr Duties and Rights ofRectors. i. The

Council of Trent requires them to keep two registers: one

of baptisms (liber baptismoruni), the other of marriages (liber

matrimonioruni) In the United States, as in most other

countries, they are obliged, moreover, to keep a record of

persons confirmed, and of interments;

177

the Roman Ritual

also exhorts pastors to keep a liber status animarum i.e., a

register containing the name and condition of each parish

ioner. Moreover, in some of our dioceses bishops require

rectors to have a register of first communicants. 2. The

Third Plenary Council of Baltimore (n. 275) also obliges our

rectors to have a Day Book or Journal in which the receipts

and expenses of the mission are carefully recorded and the

assets and liabilities accurately noted.

" Cone. PI. Bait. II., n. 198."

Ib. ( n. 201. "4 Ib n IQ7" Avanz. (34); Konings, n. 1740; Com., n. 65 (20).

Phillips, 1. c., p. 347. Cone. PI. Bait. II., n. 222.



CHAPTER X.

">T ASSISTANT PRIESTS, CHAPLAINS, AND CONFESSORS.

ART. I.

Of Assistants of Rectors, and of Chaplains.

670. I. Assistants or vicegerents (vicarli, curati, coopera*

tores, coadjutores, adjutores] of rectors arechiefly of four

kinds: i. Those who are

deputedto take

chargeof vacant

parishes until a new rector is appointed. They are usually

styled oeconomi or administratores. A parish, upon falling

vacant, whether by the death, removal, or resignation of its

pastor, should, pending the appointment of a new rector, be

placed, as soon as possible, in charge of a vicar.1

In the

United States, as elsewhere, the appointment of these vicars

belongs to the bishop. 2. Those who have charge of a

parish during the absence of its rector;with us, as else

where, they are usually chosen by the pastor (before he

goes away), with the consent of the bishop. Their salary

is determined by the bishop. 3. Assistant priests proper

(vicarii parocJiialcs], or those priests who are appointed

to assist those pastors who (a] actually reside and exercise

the cnra in their parishes, and (U] whose parishes are too

large to be attended to by one priest. These alone can,

strictly speaking, be called assistants, the two foregoing

kinds being rather vicegerents than assistants. DC jure

communi, the appointment of these assistants belongs to pas

tors, not to bishops.2 We say, de jure communi ; for in

Bouix, De Paroch., p. 630.

&

Ib., p. 434.

474



On Assistant Priests, Chaplains, and Confessors. 475

many countries v.g., in Canada,3

Ireland,4

the United States,

etc. they are now appointed by the bishops, though fre

quently at the suggestion of the rector to whom they are

assigned. The bishop also determines their salary and

changes them. Assistants have, by their very appointment

as assistants, power to administer all the sacraments (excepv,

of course, those of confirmation and order), unless their faculties are expressly limited.

6

4. Those assistants (coadjutores)

whom the bishop associates with rectors who, though other

wise of irreproachable character, are incapable of properly

governing their parishes, either because they are too illite

rate or afflicted with continual infirmity, bodily or mental.

In this case the appointment of the assistants pertains, jure

covi., to the bishop, not to the rector.6

671. II. CJiaplains (capellani} are priests attached to

hospitals, prisons, and the like for the purpose of exercising

the sacred ministry.7

Their peculiar rights and duties are

usually determined by the ordinary according to the re

quirements of the institutions or places with which they are

connected. There are various kinds of chaplains namely,

chaplains (a) of nuns or convents, () of colleges or other

similar institutions, (c]of hospitals, asylums, protectories,

prisons, and the like, (d) of soldiers, etc. The Provincial

Council of Dublin requires chaplains of soldiers, prisons,

and other public institutions, at stated times, to inform the

bishop of the moral and religious condition of these institu

tions.8

I. Chaplains of nuns or sisters (capcllani monialium)

should be of mature age i.e., about forty years of age. II.

3C. Queb. II., an. 1854 ; ap. Coll. Lac., iii., 657.

*Syn. PI. apud Maynooth, arm. 1875, n. 217.

6

Craiss., n. 1519.

& A number of German bishops proposed, at the Vatican Council, that, in re

gard to pastors incapable of governing their parishes, bishops might be

allowed not only to give them assistants with powers of administration, but

also to transfer them against their will or retire them upon a suitable pension

(Martin, Doc., p. 172).

T

Devoti, 1. i., tit. iii., n. 93.1C. Prov. Dublin., an. 1853, ap. Coll. Lac., iii., p 805.





Chaplains, and Confessors. 477

fellow-passengers during the voyage i.e., until they land at

a port where another ordinary resides.13

2. Where a vessel

or ocean steamer puts to sea from several ports v.g., first

from New York, then from Boston priests going aboard at

New York may be approved by the ordinary of New York,

and priests embarking in the same vessel at Boston by the

ordinary of Boston.

ART. II.

Of Confessors.

i. Of Confessors who are neither Canonical Parish Priests,

nor Vicars-General, nor Regulars.

672. I. Necessity of Approbation, Not only the potestas,

ordinis, but also \he pstestasjurisdictionis, is required in order

that one may valiclly impart sacramental absolution. Hence,

the minister of the sacrament of penance must (a) be a priest,

(&) and have permission to hear confessions.14

Canonical

parish priests receive this jurisdiction by their very appoint

ment as pastors ; other priests must have the permission or

approbation of the bishop. Strictly speaking, approbation

(approbatio) differs from the giving of faculties (collatiojuris-

dictionis) ;the former is merely an authentic declaration by

the ordinary that a priest is qualified to hear confessions;

the latter confers the power itself in actn to do so. Still, as

at present both are usually given simultaneously to secular

priests, the two terms have come to be used synonymously.

II. By whom is the approbation orfaculty to hear confessions to

be given f By the bishop of the place where the confessions

are heard. Hence, priests approved for one diocese cannot

hear in another by whose bishop they are not approved. The

same holds of regular confessors, so far as their hearing secular

persons (lay or clerical) is concerned. By the bishop we here

11Cfr. Craiss., n. 15 JQ.

MSupra, n 224.



4.-s On Assistant Priests,

mean also vicars-general, chapters, vicars-capitular (with us,

administrators), and prelates having jurisdictio episcopalis.

The bishop, even while out of his diocese, may give priests

permission to hear in his diocese. III. Withdrawal, etc., ofParities. I. The bishop cannot lawfully (a) refuse, () or

give but limited faculties, (r)or withdraw them, whether

limited or unlimited,except

forjust

cause.

We said, lawfully; for the bishop may, even without cause, validly re

fuse, restrict, or withdraw faculties.16

2. Faculties conceded

by the bishop without limit oftii,.--^.^-., those granted

usque ad revocationem though revocable at any time, do not/

however, of themselves lapse by the death or removal of

the bishop by whom they were given. This, however, does

not hold of faculties conceded by bishops ad beneplacitum nostrum or ad arbitrium nostrum."

2. Of Confessors who are Vicars-General and Canonical

Parish Priests.

673. I. Vicars-general do not require an approbation 01

faculties from the bishop for confessions. For they have, bytheir very appointment to the

vicar-generalship, jurisdictioordinaria throughout the diocese.

18

II. Canonical parish

priests, in like manner, do not need any approbation to hear

their own parishioners,19

even out of their parish or diocese.

They cannot, however, out of their parishes, hear non-

parishioners, unless they are expressly ortacitly approved

by the bishop for this purpose. Rectors in the United

States,20

not being canonical parish priests, cannot hear con

fessions by virtue of their appointment as rectors, but must

16

Konings, n. 1392, q. 4, 5, 6."

Ferraris, V. Approbatio, art. i., n. ro; Bouix, De Episc ,

t. ii., p. 246.vKonings, 1393.

& 8

Supra>n

" Or others

comingto

them in their parishes.10 As to California, see supra, n. 654.




be approved by the bishop. Rectors and assistants, with us,

are, as a rule, approved for the whole diocese.

3. Of Confessors who are Regulars.

674. I. Regulars, unless they are canonical parish priests,

to be able to hear seculars, must, like secularpriests,

beap

proved by the bishop of the place where they hear the confes

sions. We say, seculars ; for, so far as concerns their hearing

(male) members of their own order, they are approved, not

by the bishop, but by their own superiors.21

It is, however,

the common opinion that although they must be approved

by the bishop or their prelate, they nevertheless receive juris

diction directly from the Pope. II. The bishop cannot, without just cause, lawfully, though he may validly, refuse regu

lars faculties to hear seculars (lay or clerical). He may limit

such faculties as to time, place, or persons at least, in the

case of regulars who might be somewhat more competent.

We say, at least ; for, according to Bouix,22a bishop, upon

examining regulars prior to approving them for seculars,

and finding them entire \y qualified (generaliter idoneos) to

hear confessions, must give them unlimited faculties. Bene

dict XIV., however, according to Bouix, holds the contrary.

Again, the bishop may, as a rule, withdraw from individual

regulars faculties to hear lay persons. We say, i, as a rule ;

for if he himself has, upon previous examination, given them

unlimited faculties, he cannot himself deprive them of, or

even restrict, their faculties, save"

ex nova superveniente

causa confessioncs concernente" We say, 2, from individual,

etc.;for he cannot, without the consent of the Holy See, with

draw faculties from all the members of a religious community .

except in countries faraway from the Holy See, and then only

ex gravissima causa. III. Can regulars sometimes confess A

priests not belonging to their order ? Professed members of re

* l

Supra, n. 618.M De Jur. Reg., t. ii., p. 230.

2S

Bouix, 1. c., p, 243.



480 On Assistant Priests,

ligious orders should, as a rule, confess to confessors of their

own order. We say, first, professed, etc.;for novices and lay

servants living in the monastery can go both to the religious

confessors of the monastery who are not approved by the

bishop to hear seculars, and to extraneous priests having facul

ties from the bishop to hear seculars. We say, secondly, as a

rule ; for, i, in time of jubilee they can, without permission

from their superiors, confess to any priest approved by the

bishop, and be absolved by him, even, as a rule, from censures-

inflicted by the regular superior.24

2. In case of necessity

/.-., if, while travelling or out of the monastery, in order to

preach, give missions, and the like,25

they have no confessor

of their own order within reach they may, by the presump

tivepermission

of theirsuperior,

confess to

any competentpriest, regular or secular, even though not at all approved

for confessions.2 &

Observe, by regulars we here mean only

professed members of orders approved by the Holy See nay,,

only such as are exempt from episcopal authority.

4. Confessors of Nuns, especially in the United States.

675. Dejure communi, a special approbation is required to

validly hear nuns proper that is, nuns having solemn vows

and observing Papal (or canonical) enclosure. We say, a

special approbation ; hence, (a) priests,secular or regular, ap

proved by bishops in the ordinary manner only, (b) and

even canonical parish priests, cannot, unless specially ap

proved for nuns, hear them." By whom is this special ap

probation to be given ? By the bishop of the place where

the nuns are heard. Observe, however, that if the nuns are

subject to regular prelates,the designation of their confessor

belongs to the regular prelate,the approbation proper to the

MVarc., p. 195.

26Ferraris, 1. c.

(art. ii

,n. 9-15.

"

Bouix, 1. c., p. 252. Capuchins, however, can, in the above case, confes*

priests onlywho are

approved bythe bishop of the place.

97Ferraris. 1. c., art. Hi., n. i-d.




cishop ;if they are subject to bishops or directly tc the

Holy See, the appointment in full that is, the designation

as well as the approbation pertains to the bishop. As a

rule, but one confessor should be appointed for a convent.

The ordinary confessor, even of nuns, having but simple

vows, can be appointed neither for a longer nor a shorter

period than three years. But in the United States andother places where it is customary to appoint them without

limit of time, their approbation is valid until withdrawn by

word or deed.29 A confessor appointed for one convent

cannot, unless he is approved for nuns in general, validly

hear nuns in another convent. Extraordinary confessors

should be given nuns two or three times a year. A confes

sor appointed to act once only as extraordinarius cannot do so

a second time, unless he is reappointed.29

6/6. Confessors of Nuns or Sisters in the United States.

What has been thus far said applies chiefly to nuns bound

by solemn vows. We therefore ask : Is a special approba

tion necessary to hear the confessions of sisters or nuns in

the United States ? We premise : All our sisters, with the

exception of those of several houses of the Visitation, or

where a special Papal rescript has been obtained, have but

simple vows. We now answer : i. It is certain that, dejure

particulari, a special approbation may be needed. In other

words, our bishops may ordain that pastors and confessors

in general cannot validly hear sisters without a special appro

bation. 2. But is such special approbation requisite with

us, de jure communi? There are two opinions. Kenrick"

holds the affirmative. Others, who maintain the negative,

contend that everything depends upon the will of the

bishop ; that, nevertheless, it is the desire of the Holy See

that special confessors be appointed for nuns having but

simple vows.*1

28Kenr., tr. xviii.,

139; Gury.,t. ii., n.

565.29 Bouix, 1. c.. p. 258; Ferr., 1. c., n. 8, 9.

30 L. c., n. 142; Bouix, De Episc., t. ii., p. 255.31

Konings, n. 1399, q. 2.




f^lf As a matter of fact, prior to the Third Plenary Coun

cil of Baltimore (Nov. 1884), in some of our dioceses a special

approbation was required ;in others, not. The Third Plen

ary Council of Baltimore (n. 96, 97), wishing to introduce uni

formity of discipline in this matter, lays down the following

regulations to be observed for the future all over the United

States :

1."

Neque negligant episcopi, pro sororibus etiam sim-

plicium votorum, sequi praescriptionem ecclesiae quae vult

ut pro sanctimonialibus ab ordinario vel aliis superioribus

turn confessarius ordinarius constituatur turn aliquoties per

annum extraordinariusdeputetur." (Cf. Cone. PI. Bait. II.,

n. 417.)

2."

Confessarius ordinarius nisi aliter necessitas suadeat,

ultra tres annospro eadem communitatemnnerc suo nonfungatur

Facultates necessarias ad confirmationem confessarii, ratione

nostrarum condition urn, impetrabunt episcopi a S. Congre-

gatione. Extraordinarius saltern bis vel ter in anno ad con-

fessiones omnium excipiendas sese praesentabit ;ast etiam

aliquando particularibus monialibus saepius eum postulanti-

bus non denegetur."

These regulations, so far as regards the ordinary con

fessor, apply chiefly to sisters living in tJieir convent or mother-

house. For, where sisters or nuns with us teach in parochial

schools, and consequently live near the school and out of

their convent, the rector of the church to which they are

attached is generally regarded by virtue of his office as their

ordinary confessor. In this case, the rule that the ordinary

confessor should be changed every three years (now six

years) does not hold, at least with regard to sisters, whose

rule allows them to go outside to any priest, as sisters of

charity. Nor is it necessary that it should hold. For, these

sisters attached to parochial schools are generally changed

every two or three years, and are thus given a new ordinary

M The Holy See has recently extended this space of three years to six years.



Chaplains, and Confessors.

confessor in the person of the rector of the new place to

which they are transferred.

Again, as all sisters,33

with us (since there is no special

Papal rescript exempting any of them), are subject to the

bishops of the dioceses where they are, their confessors,

ordinary and extraordinary, are designated as well as ap

proved solely by the bishop of the place where the confes

sions are heard. Hence, the regular prelates (i.e., abbots,

generals, provincials) of the Benedictine, Dominican, and

Franciscan orders in the United States cannot present

to bishops the confessors respectively of Benedictine, Do

minican, and Franciscan sisters in this country ;a fortiori,

neither can these superiors34

themselves hear such nuns

without episcopal approbation.

5. Of Confessors in relation to Reserved Cases Of Reserva

tions and Censures, as in force at present, according to

Const. Ap. Sedis" of Pope Pius IX., issued Oct. 12, 1869

Special Powers of Bishops in the United Statesrespecting

these Reservations.

677. Definition. By reserved cases (casus reservati] are

meant certain more grievous sins from which ordinary or

inferior confessors cannot absolve without a special approba-81

Konings, n. 1399, q. 2.

MIn the diocese of Boston no special approbation is needed to hear Sisters

of Charity ;nor in the archdiocese of Bahimore.

33 As Sisters of the orders of SS. Benedict, Dominic, etc., with us, have

but simple vows, they ate subject not to the regular prelates of the above

orders respectively, but to bishops. The sixteenth ch. of the schema (relative

to religious) of the Vatican Council proposed that all sisters with but simple

vows, even though under a superioress-general, should be entirely subject to

bishops, except in regard to their constitution as approved by Rome (Mart.,

Arb., p. 127). Again, the above nuns are not bound by the law of Pap;il en

closure. But the c. vi. of the schema "de clausura" of the Vatican Council

proposed to enjoin enclosure in a moderate form on all nuns having but simple

vows(Mart., Doc., p. 238).

84 Whether regular prelates can, without episcopal approbation,*hear nuns,

subject to themselves, is a disputed question (Bouix, De Jur. Reg., t. ii., p. 257).

No nuns in the United States are subject to regular prelates.




tion. 1. Conditions of Reservations. As a rule, no sin is re

served unless it is (a) mortal, (b) external, (c) certain, (J }

complete, (e)committed by adults.

35 We say, i, mortal; for,

according to the Council of Trent, only atrodora quaedam ct

graviora crimina should be reserved. The sin should be

mortal, not only internally but also externally. 2. External,

the Church sometimesreserves occult? but never merely in

ternal, sins. 3. Certain; hence, no reservation is incurred

where it is doubtful (a)whether the sin was committed or

whether it is mortal internally and externally (dubium facti ) ;

(b)whether it is reserved (dubium juris). 4. Complete ; thus,

where murder is reserved, a person merely inflicting

wounds, even though serious, does not incur the reser

vation, unless the contrary is expressly stated. 5. Commit

ted by adults; hence, boys under fourteen and girlsunder

twelve years of age do not, except where the contrary is

stated, incur reservations. This fifth condition, however,

is not admitted by all. II. Who can reserve cases? The

prelatesof the Church only that is, those who have juris

diction both in foro intcrno and externo ; in other words, the

Pope for the entire Church, the bishop for his diocese, supe

riors of religious communities for such communities. Ac

cordingly, reserved cases are divided into Papal, episcopal,

and regular. Regular prelates, however, in order to be

able to reserve more than the eleven cases permitted by the

jus commune, must have the consent of the general chapter

of the whole order if the reservation is to extend over the

entire order, and of the provincial chapter if only over the

province.37

Note. Not only professedmembers (whether

priestsor lay-brothers)

of exempt orders, but also their

novices, candidates from the time they are accepted for the

order, and servants living in the monastery, are, as a rule,

exempt from episcopalreservations.

678. HI.Does

ignoranceof the censure or reservation pre-

Craiss . n. 1596-1601."

Cfr. supra, n. 580.37

Varc.. pp. 739, 743-




vent its being incurred? As to censures, it does. As to

reservations, we distinguish : The sin is reserved, either

with or without censure. If it is reserved without censure,

the question is controverted. If with censure, we must

again distinguish : The case is reserved either to the Pope38

or to bishops. It is certain that ignorance exempts from the

former. Does it also exempt from the latter ? The questionis disputed. According to Varceno

3fl

and others, it does, if

the case is reserved to bishops by the jus commune v.g. ,the

three excommunications reserved to bishops in the Const.

Ap. Scdis of Pope Pius IX.;but if the sin is reserved by the

bishop himself, whether in or out of synod, ignorance ex

cuses merely from the censure, not from the reservation,

Others, however, hold that ignorance excuses from all reser

vations, whether Papal or episcopal, whether with or with

out censure, chiefly because reservations are always penal.40

679. Who can absolve from reserved cases ? i. The person

reserving; 2, his superior or successor; 3, those delegated

by the persons just mentioned; 4, sometimes inferiors.

It is

certain,

41

accordingto the C.

Ap. Sedis of Pius IX.,that regulars can no longer absolve from cases reserved

to bishops by the jus commune(v.g., by the C. Ap. Sedis}"

I. Can a person who has incurred a reservation in his own dio

cese or place of domicile confess in another diocese where the sin

is not reserved, and there be absolved by any ordinary confessor ?

There is question of cases reserved, either with or without

censure. As to the latter, we reply in the affirmative, withthe proviso already mentioned.

43

As to the former(i.e., cases

with censure), we distinguish: The censures are reserved

either ab Jiomine, and that per sententiam particularem, or a

jure. As to the first, we reply negatively, such censures

being absolvable by the person only who inflicted them, or

"

See infra, n. 63i. P. 744 .

&

Bailer, ad Gury., t. ii., n. 711"

Cfr. Craiss., n. 1630. Cfr. supra, n. 582."

Supra n. 582.




by his successor, superior, or one delegated by thei.i. As to

the second, the question is disputed. Practically, the affir

mative may, by reason of custom, be acted upon, providedthe penitent does not act chiefly in fraudem legist II. Can

an ordinary confessor, out of the above case, sometimes absolve

from reservations ? He can, in two cases: I. In articulo or

periculo mortis. In this case he can absolve not-

onlyfrom

reserved sins, but also from reserved censures, arid that

even though the superior or confessor having the requisite

special faculties be present or within reach.45

Nay, in de

fault of an approved priest, any priest can so absolve. Now,is a penitent thus absolved obliged, in case he survives, to

present himself, as soon as convenient after his convales

cence, to the superior or confessor having the requisite

special faculties? If the case is reserved without censure,

he is not;

if with censure, he is, though at present, accord

ing to Varceno, only in case he has incurred one of the

tourteen censures reserved, speciali modo, to the Roman Pon

tiff by our Holy Father Pius IX. 2. In case of necessity ;

thus, if it is impossible, even by letter, to recur to the supe

rior, and there is a pressing cause v.g., clanger of scandal or

loss of good name, arising, v.g., out of a priest s omitting to

say Mass any ordinary confessor can absolve indirectly from

cases reserved to the bishop, or even to the Pope if the

bishop cannot be applied to." We say, indirectly ; hence,

the penitent must afterwards present himself, when able to

do so, to a confessor having power to absolve from the reser

vation (practically, to the same confessor, after the latter has

obtained the necessary faculties from the bishop).*7

680. In how many ways can cases be reserved ? In two :

i. Ratione sui tantum that is, without censure, and merely

because of the sin. 2. Ratione censi rae that is, with and on

**

Craiss., 1612;

Varc., p. 746.

46

Varc., p. 748.**Craiss., 1618. "

Konings, n. 1403.




account of censures. Observe, most episcopal cases are

reserved without censure; nearly all Papal cases, with

censure.

68 1. Censures reserved at present to the Sovereign Pontiff.1 9

1. Hoiv many cases are now reserved to the Pope witJwut cen

sure ? These two: i. If any one (male or female), either

personally or through others, falsely accures an innocent

priest of the crimen sollicitationis before ecclesiastical judges ;

2, if a person accepts from religious proper of either sex gifts

worth more than ten Roman scudi (dollars). Ferraris, how

ever, holds that this case is not reserved to the Pope.

Moreover, a decision of the S. Poenit., March 15, 1861, as

sumes it to be reserved merely tobishops." Observe, not

the religious who makes, but the person who accepts, the

presents incurs the reservation. Again, religious proper of

both sexes may, with leave from their superiors, make dona

tions for various reasons v.g., in token of benevolence, to

assist needy relatives;and persons accepting gifts thus prof

fered do not incur the reservation.50

II. How many cases are

at present reserved to the Pcpe with censure (ratione ccnsurae] 1

We premise : At the present day, according to the C. Ap.

Sedis of Pius IX., by which the ecclesiastical censures latae

sentcntiae were limited, the cases reserved to the Sovereign

Pontiff, with censure (namely, excommunication), are of two

kinds: i. Some are reserved speciali modo that is, in such

manner as to be absolvable neither by bishops (unless they

obtain, like

bishops

in the United States, special and express

faculties from Rome to do so), nor by others howsoever

4S A number of French and German bishops submitted proposals at the

Vatican Council requesting that the cases reserved to the Pope, with or without

censure, be reduced to as small a number as possible, if not altogether abol

ished, and that each new Pontiff, in the beginning of his pontificate, should

deign to publish to the entire Church a list of cases he intended to reserve to

himself, with the provision that all reservations of former Popes not contained

m this list should I r considered as. eo ipso, abrogated (Murtin, Arb., p. 106 ;

Doc., pp. 155, 171).49

Craiss., n. 1603.6l)

Varc., p. 740




otherwise privileged.51

2. Others are reserved simpliciter

that is, in such manner that bishops as Papal delegates in oc-

cultis, where the Council of Trent is received, and others "au

thorized in a general manner to absolve from Papal cases, mayabsolve from them." We now answer : At present only four

teen cases are reserved to the Pope,53

speciali modo (namely,

twelve in the C.

Ap. Sedis,Oct.

12, 1869,and two

respective.ly by the C. Romanus Pontifex, Aug. 28, 1873, and decree 5.

Pocnit., Aug. 4, 1876), and twenty simpliciter (namely, eighteen

in the C. Ap. Sedis and two respectively by decree C. S. O.,

Dec. 4, 1872, and EncycL of Pope Pius IX., Nov. i, 1870)."

682. Cases reserved to BisJwps at present. They are, as we

have shown/6

of two kinds : Some are reserved by bishops

themselves;

others by or in the jus commune v.g., in the C.

Ap. Sedis. Now, t\\ejus commune reserves cases to bishops

(<?)

either in a general manner, (U]or specifically i.e., by

name. I. What cases are at present reserved in a general way

to bishops by thejus commune ? i. All cases to which an ex

communication simpliciter reserved to the Pope is attached

in the C. Ap. Sedis of Pius IX., whenever they are occult."

We say, simpliciter reserved, etc. ; for bishops cannot, by vir-

tue of the jus commune, absolve from any of the above four

teen cases reserved, speciali modo, to the Pope, even when

they are occult. 2. All cases whatever reserved to the

Sovereign Pontiff, even though speciali modo in and out

of the C. Ap. Sedis of Pius IX., and even though public or

notorious, when the delinquent is canonically hindered from

presenting himself in person to the Holy See. We say, in

person ; for he is not obliged to recur to the Holy See by

letter orproxy." Now, what persons are considered as

canonically unable to go to Rome ? The inability is either

permanent or temporary. It is permanent when it lasts ten,

61C. Ap. Sedis, A quibus ; Com. Ed. Mauri, n. 172.

MVarc., pp. 741, 940.

63

Konings,n.

1717,ed.

3*.

MIh.,

n.1732.

**

Supra, n. 582.5G

Crai ss.,n. 1649.

" Varc, p. 122



Chaplains^ and Confessors. 489

or, according to some, five, years ;it is temporary when it

continues less than ten or five years (though not if it lasts

less than six months). The following persons are said to be

permanently hindered from going to Rome : Women, ex

cept where they are expressly marked with censure, as nuns

violating enclosure; sexagenarians ;

servants;those who are

poor, labor under chronic and serious diseases, or are condemned to perpetual imprisonment; those who are obliged

to support a family or administer its property ;those who

fill a public position which they cannot relinquish without

grave or public detriment; religious ; boys under the age of

puberty, even though they ask for absolution after they at

tain to the age of puberty ;sons under the control of their

parents ; seminarians, soldiers, etc. ; finally, all others whocannot go to Rome without grave loss, temporal or spiri

tual. Note. Those who are permanently unable to present

themselves to the Holy See can be absolved absolutely (so

that they need not afterwards, even when they become able,

go to Rome) by the bishop or his delegate ; those, on the

other hand, who are but temporarily unable, can be absolved

by the bishop or confessor authorized by him, even out of

the case of necessity, though only conditionally or ad rcinci-

dentiam, so that if they do not, when able, present themselves

to the Holy See, they, ipso facto, reincur the censure."

Again, as bishops can, dejure communi, absolve from the above

Papal cases, they can also empower their priests to do so.

683.

II. What cases are at present specifically i.e., by

name reserved to bishops in the jus commune ? The jus com

mune i.e., for the purposes concerned, the C. Ap. Sedis of

Pope Pius IX. declares the following persons subject to ex

communication latae scntentiae reserved to bishops or ordi

naries :

"

i. Clericos in sacris constitutes, vel regulares aut

moniales post votum solemne castitatis, matrimonium con-

68 Com. Ed. Mauri, n. 167, 168, 173.






male or female, who falsely accuses a priest of sollicitatio in

confession; 4, from heresy, apostasy from the faith, and

schism in the cases already mentioned."3

Observe, PopePius IX., by decrees of the S. U. Inq., respectively dated

June 17, 1866, and April 4, 1871, ordained that in all Papal

concessions whatever, empowering bishops (even of the

United States) to absolve from cases reserved to the HolySee even modo speciali, the power to absolve from the cases

under n. 2 and 3 should always be excepted, and that even

expressly as to case n. 2. Hence, the latter case is said to

be reserved to the Pope modospecialissimo"

From what has

oeen said, it is evident that our bishops can, except in the

four cases given, absolve absolutely (so that the penitent

need never afterward present himself to the Holy See) from

all cases or excommunications whatever, whether reserved

simpliciter or modo speciali to the Pope in or out of the C. Ap.

Sedis, even when they are notorious nay, even where the de

linquent can go to Rome. They can in fact, usually do

communicate these faculties to their priests.65

Later on (in

a future work), when we come to treat of censures, we shall

explain in detail the C. Ap. Sedis of Pius IX.

through their confessors, and without mentioning the names, recur to the

S. C. Prop. Fid. and state the number of their accomplices and how often they

absolved from the sin of complicity ; (/>)

and that they be bound to obey the

orders of the aforesaid S. C. in this matter, on pain of otherwise reincurring

the same censures and penalties; 7, they should also receive a suitable penance,

and be commanded to abstain altogether from hearing the confessions of their

accomplices ; finally, all else, as required by law, should be enjoined (Ko-

nings, p. Ixxi.; Cone. PI. Bait. II., p. 146, deer, i.)

83

Supra, n. 581 (notes 277,278).64

Avanz., p. 18."

?ac., I. c., n. 28



PART IV.

THENEWDIOCESAN CONSULTORSIN THE UNITED

STA TES, ACCORDING TO THE " THIRD PLENARYCOUNCIL OF BALTIMORE." *

HAVING spoken of the rights and duties of bishops, priests,

and other ecclesiastics, it but remains to treat briefly -of the

rights and duties of those ecclesiastics who are the official

and legally constituted advisers of the bishop in the govern

ment of the diocese, also in the United States. According

to the general law of the Church, as still in full force, every

diocese must have a cathedral chapter. This chapter is

constituted by law the cabinet or advisory board of the

bishop. In the United States there are as yet no cathedral

chapters. However, the Third Plenary Council of Baltimore

decreed that in every diocese a certain number of diocesan

consultors should be appointed, who should be the official

advisers of the bishop, and who should therefore take the

place of cathedral chapters, until the latter could be properly

established. We shall here inquire (a) into the origin and

history of bishops councils, both here and elsewhere ; (ff)

their nature and organization ; (c)their rights and duties.

* This treatise is entirely new matter, written for the sixth edition of this

work.

492



CHAPTER I.

HISTORY, ORGANIZATION, ETC., OF CHAPTERS OR BISHOPS*

COUNCILS, ALSO IN THE U. S.

ART. I.

Origin andHistory of Bishops Councils, also in the United States.

I. General History of Bishops Councils, Bishops, evenwhen the apostles were as yet living, associated with them

selves ecclesiastics to assist them in their sacred duties. In

the first three centuries of the Church, twelve priests and

seven deacons formed the superior clergy in each diocese,

and were entitled to be consulted by the bishop in the govern

ment of the diocese and to administer it when vacant. They

made up the council and senate of the bishop, and together

with him governed the diocese. Bishops councils, then, are

of apostolic institution. For, as Nardi sa}T

s, these Episcopal

councils or senates were instituted in the time of the apostles,

have existed uninterruptedly down to our own day, and will exist

to the end of time, bearing as they do the seal of apostolicity, so

dear to the Church.1

Formerly they were styled Presbyteria,

Coronae, Consessus, Concilia, and Senatus ; now they are

called cathedralchapters."

1

II. History of Bishops Councils in the United States. The

Second Plenary Council of Baltimore, held in 1866, exhorted

bishops to appoint priests who should be the advisers of the

bishop in the government of the diocese,3

and commended ti\t

1

See our article on Cathedral Chapters in the A. C. Q. R., Oct. 1878, p.

710 sq.*Bouix, De Capit., p. 7.

3 Cone. PI. Bait. II., n. 70, 71.

493



494 History, Organization, etc.,

practice of calling them together once every month, on a

statedday." Accordingly, in nearly every diocese, bishops

councils were established. However, owing perhaps to the

fact tnat the Second Plenary Council merely advised \\\z estab

lishment of these bodies, and that it did not define their par-

ticular duties, they were bishops councils, as a rule, only in

name.5 To

remedythis

inconvenience, the Third PlenaryCouncil of Baltimore decreed and commanded that in everydiocese a certain number of worthy and learned priests

should be appointed diocesan consultors, whose advice the

bishop should be bound to take in certain cases expresslyenumerated.

ART. II.

Nature and Organization of Cathedral Chapters, and of BishopsCouncils in the United States.

I. Definition. Cathedral chapters (capitula catkedralia), in

the canonical sense of the term, are bodies of ecclesiastics

forming ecclesiastical corporations (collegia), subject indeed

to thejurisdiction of the bishop, but nevertheless constitut

ing a separate body or association, under the direction of

their own president or dean, enjoying special privileges, and

established for the purpose of assisting the bishop, while alive,

in the government of the diocese, and of taking his place and

4 Cone. PI. Bait. II., n. 71.

6 In order to introduce gradually among us the general law of the Church

respecting cathedral chapters proper, the Propaganda, in the conferences held at

Rome, in 1883, with our archbishops, proposed to establish cathedral chaptersin the United States, not, indeed, in the full canonical sense of the term, but

yet in the manner in which they exist in England, Ireland, and Holland, namely,as corporate bodies, etc. To this proposal our prelates objected. The matter was

finally arranged thus: The Cardinals of the Propaganda decided that in the

Third Plenary Council the establishment of cathedral chapters should not be

excluded; and that meanwhile Episcopal consultors should be appointed, with

certain defined rights and duties. See C. P. Bait. III., n. 17, 18.* C. Pi. Bait. III., n. 17, 18, 19, 20.



of Bishops Councils, also in the United States. 495

governing the diocese when the see is vacant? This definition

expresses in general the nature and organization, as well as

the rights and duties, of cathedral chapters. In the present

article we shall speak of the former;in the next, of the

latter.

II. Organization of Cathedral Chapters. Cathedral chap

ters, as constituted in accordance with the general law of the

Church, are moral bodies or ecclesiastical corporations. This is

expressed in our definition. Now every association or moral

body must have a head, i.e., one who presides over it. Ca

thedral chapters have, so to say, a twofold corporate exist

ence : one as the senate of the bishop ;the other, as a cor

porate body of its own. In its capacity of senate and council

of the bishop, the chapter forms a moral body which is one

with the bishop, and of which therefore the bishop is the head

and noblest member.8

Hence, in all matters relating to the

government of the diocese" the bishop acts as the president

of the chapter, and therefore convenes it and presides over

its meetings.10

But in its capacity as a body of its own, it is distinct from

though not independent of the bishop, and has, like every

other society or ecclesiastical corporation, the right to make

its own rules and regulations, and be presided over by its

own officers, in all matters relating to its own internal regime

and not to diocesan affairs. Consequently, of the chapter,

viewed under this aspect, the bishop is not the head, nay,

not even a member. Hence he has no decisive vote in

purely capitular matters. Moreover, the chapter has (in its

second capacity) its own presiding officer or head, who is

usually called dean or provost.11 When the latter dies or is

absent, the older canon, as a rule, becomes the head or presi*

dent of the chapter for the time being.

7Cf. Ferraris, v. Capitulum, art. i., Nov. Add., n. I.

8 Bouix, De Capit., p. 60. 9 Ib., p. 174.

10 Cone. Trid., sess. xxv., c. 6, De Ref. nBouix, 1. c., p. 60.



496 History, Organization, etc.,

III. Organization of Diocesan Consultors in the United States.

Our bishops councils, as established by the Third Plenary

Council of Baltimore (n. 17, 18) have no corporate existence,

that is, they have no organization as a separate body, and

hence no presiding officer or other officials of their own.

The bishop is their sole head, and convenes them four times

a year, or, where this cannot be done, at least twice a year, at

stated periods,12

and always presides at their meetings. Ex

traordinary meetings are held as often as occasion requires.

ART. III.

Appointment and Removal of Canons and of Diocesan Consultors

in the United States.

I. Appointment. Cathedral chapters, in the full canoni

cal sense of the term, can be erected only by the Holy See.

The Pope always proceeds to the establishment of these

chapters simultaneously with the creation of the bishopric,

or as soon thereafter as the state of dioceses admits of them.13

By the common law of the Church, as at present construed,

the appointment of canons of cathedral chapters belongs

jointly or simultaneously to the bishop and the chapter.14

However, as in practice this mode of appointment is sur

rounded by difficulties, it has become customary in various

dioceses for the bishop and the chapter to make the appoint

ment by turns or alternately, so that each in turn makes the

appointment independently upon the other.

II. Appointment of Consultors in the United States. The

Third Plenary Council of Baltimore ordains that each diocese

shall have six, or at least four, Consultors ;that where this

number can in no wise be had, there shall be at least two"

As to the mode of their appointment, this Council enacts

12 Cone. PI. Bait. III., n. 21.13 Prael. S. Sulp., n. 384.

14 Thisjoint

right of appointment is called jus collationis simultaneae.

15 C. PI. Bait. III., n. 18.



of Bishops Councils, also in the United States. 497

that one half of the above number shall be appointed solely

by the bishop ;the other half also by the bishop, though

only on the nomination made by the entire clergy, in the

manner laid down by the Council. The diocesan consultors,

thus properly appointed, hold their position for three years,

after which they must be either reappointed or others

chosen in their stead in the same manner as just described. 17

If, however, this term of three years expires during the

time when the episcopal see is vacant, the consultors will

remain in office until the accession of the new bishop, who

will be bound to proceed within six months from the day of

his consecration to the new appointment of the consultors

in the manner above stated.28

Finally, where, during the

above term of three years, a consuitor either dies, or resigns,

or is removed, the bishop has the right and duty to appoint

another one, though only with the advice of the other con-

suitors.19 As will be seen, the mode of appointment of our

diocesan consultors resembles somewhat that of canons of

cathedral chapters, as above set forth.

III. Removalof Canons,

andof

our Consnltors. Canons

proper of cathedral chapters hold their position for life, and

are therefore canonically irremovable (inamovibiles, pcrpetui).

Consequently they cannot be deprived of their office of can

ons, save for crime, specified in law and by canonical trial.20

Our diocesan consultors, as we have seen, are appointed

only for three years. During this term of office they cannot

be removed, against their will, except for legitimate and just

cause, and by the advice of the other consultors. What

constitutes a legitimate and just cause for removal? The

answer is given by the Third Plenary Council of Baltimore, n.

21. From this it will be seen that they can be removed from

the office of consultor also for causes other than crimes, and

without a trial in the proper sense of the term, though not.

without a previous investigation.

16 C. PI. Bait. III., n. 19.17

Ib., n. 21.

&

18 C. PI. Bait. III., n. 21

19Ib.

i0 Prael. S. Sulp., vol. ii., p. 169, n. 419.



CHAPTER II.

RIGHTS AND DUTIES OF OUR DIOCESAN CONSULTORS, SEDE

PLENA.

I. Where there are cathedral chapters in the canonical

sense of the term, the bishop is bound, by the general law of

the Church, to proceed in some matters with the advice, and

in others with t/ic consent, of the cathedral chapter ;and if he

fails to act with this advice or consent, where the law pre

scribes it, his acts are null and void. All this follows from the

very nature of cathedral chapters. For, as was shown, they

constitute the senate and council of the bishop in the adminis

tration of the diocese. He is the head, they are the mem

bers, of the diocesan governing body. Now it is unbecoming

for the head to act without the members.1

II. Our diocesan councils,as established

bythe Third

Plenary Council of Baltimore, are, like cathedral chapters, the

official and legal senate and council of the bishop in relation

to the government of the diocese. They are to take the

place of cathedral chapters until the latter can be properly

established. Wherefore the Third Plenary Council enacts

that the bishop shall be bound to take the advice of his con-

suitors in a number of cases expressly stated by it.

Wesay advice ; for the council does not oblige the bishop to act

with the consent of his consultors in any case whatever.

Observe, however, that the bishop is indeed bound to

ask this advice in the cases enumerated by the Third Plenary

Council of Baltimore (n. 20, 33, 37, 38, vii.; 273, 294), under

1

Alexander III., cap. 4, 5, De his, quaefiunt (Hi., 10).

498



Rights and Duties of our Diocesan Consultors. 499

pain of invalidity of his acts ; yet he is not bound to follow

it. For, when the law obliges the bishop merely to act

with the advice of his council or chapter, it binds him,

it is true, to ask this advice, and makes his acts void if he

fails to do so;but it does not require him to follow the

advice except when the contrary is expressly stated.2

Thus

Reiffenstuel teaches:

"

Unde quae peragenda sunt cum con-silio capituli secundum praescriptum juris, non obstante,

quod ejus consilium praelatus sequi non teneatur, tamen si

tale consilium is non adhibeat, irrita erunt actacjus."

3

We shall now proceed to explain briefly the cases where

our bishops are bound, according to the Third Plenary Coun

cil of Baltimore, to proceed with the advice of their diocesan

council. They relate to the diocesan statutes, the division

of parishes, the placing of missions in charge of religious,

the appointing of the deputies for the seminary, of new con-

suitors and of synodal examiners, the alienation of ecclesias

tical property, and the imposing of a new tax or assessment

by the bishop. We shall now discuss each of these cases

separately.

ART. I.

The Bishop is bound to ask the Advice of the Consultors in con

voking andpromulgating the Diocesan Synod.

I. The Third Plenary Councilof Baltimore decrees :

" Con

silium consultorum exquiret episcopus/r^ synodo dioecesana

indicenda et publicanda" To understand this law correctly,

it should be borne in mind that, according to the general

law of the Church, as now in force, it is certain that the

bishop can announce and convene the synod without consent

or even advice of the cathedral chapter. 2. That the synodal

9

Alex. III., cap. 4. 5 (iii , 10).

3

Reiff., 1. Hi., t. 10, n. 10.4C. PI. Bait. III., n. 20.



500 Rights and Duties of our Diocesan Consnltors

statutes, however, must, under pain of nullity, be made with

the advice of the chapter, any custom to the contrary not

withstanding. Thus already in 1180 Pope Alexander III.,

writing to the Patriarch of Jerusalem, says :

" Mandamus

quatenus in ... ecclesiae tuae negotiis ... cum eorum

(canonicorum) consilio . . . quae statuenda sunt, statuas."*

This has also been confirmedby many

decisions of the

HolySee down to the present day. Consequently they must,

on pain of nullity, be submitted to the chapter, and its opin

ion asked on them, before they are published in synod.6 The

chapter must naturally be allowed a sufficient space of time

to examine the statutes submitted to it, so that it may be able

to give an intelligent opinion on them. Consequently, while

it is true that the bishop can convoke the synod without the

advice of the chapter, it is also true that he cannot fix the

date for the holding of the synod so earl)7 as to render it

impossible for the chapter to examine and give their opinion

on the proposed statutes, before the date fixed for the cele

bration of the synod. In this sense the bishop is indeed

bound on pain of nullity to ask the advice of the chapter, also

in indiccnda, and not only in publicanda synodal

II. We say, on pain of nullity ; for, as Benedict XIV.

says, if the bishop makes laws or constitutions, and promul

gates them in synod, without having beforehand asked the

advice of the chapter, these statutes will have no force, con

sidering that they have been made in a manner prohibited

by law. However, continues this great Pontiff, they can,

when there are just and sufficient reasons, be healed and

rendered valid by the Holy See.8

III. From what has been said, it follows that the above

5

Cap. Quanto 5, De His. (iii. 10).

* Benedictus XIV., De Syn., 1. xiii., c. i, n. 15, 16.

7S. C. C. in Hispal., 26 Nov., 1689; Ferraris, v. Capitulum, art. ii., n. 21-

26; Bouix, De Cap., pp. 347, 401.

8 Bened. XIV., De Syn., 1. xiii., c. 16.





502 RigJits and Duties of our Diocesan Consultors

only those which have irremovable rectors, but also those

which have simple or removable rectors. This is evident

from the fact that the above Baltimore decree makes no dis

tinction or exception whatever, and therefore includes all

our missions or parishes.

II. The Third Plenary Council adds that the advice or

opinion of the rector of the mission which is to be divided

must also be asked. Here again the Council speaks of all

our missions without exception. Consequently, the opin

ion or advice of the rector of the mission or parish which

is to be divided must be asked beforehand, not only when

such mission or parish has an irremovable rector, but also

when it has a rector who is not irremovable. This is also in

harmony with the constitution of our present Holy Father,

Pope Leo XIII.,Romanos Pontifices, issued in May, 1881, for

England and Scotland, and are also extended to the United

States, as we have seen. For the great Pontiff describes, in

this celebrated constitution, that in dividing missions which

are not canonical parishes the bishop is bound to ask not

only the advice of the chapter, but also of the rector of the

mission to be divided, whether it has a removable or an irre

movable rector."

The meaning, therefore, of the above Baltimore decree is,

that in dividing missions or parishes, whether they have re

movable or irremovable rectors, the bishop is bound to ask

the advice of the consultors and also of the rector of the par

ish which is to be divided. The bishop is indeed bound, on

pain of the invalidity of the division, to ask this advice. But

he is not obliged to follow it.

III. Let Us now compare this regulation with the pre

scriptions of the general law of the Church concerning divi

sions of parishes. By the jus commune, as still in full force,

the bishop is bound to proceed with the consent, not merely

11 Leo XIII., Const. Romanos Pontifices, Profecto.



while the See is Filled. 503

advice, of the cathedral chapter in dividing or dismembering

parishes.12

For such division, consisting, as it does, in the

taking from a parish a part of its territory or people and in

come, is considered in the eyes of the law a real and true

alienation of ecclesiastical property (alienatio rerum ecclesiae),

2nd is consequently placed on the same footing with the

alienatio rerum ecclesiae, in the proper and literal sense of theword. Hence, like alienations proper, it can be made only

with the consent of the chapter.13

This consent is essential,

whether the bishop proceeds in virtue of M\sjurisdictio ordi-

naria, or as delegatus Apostolicae Sedis, except when he acts as

delegatus Apostolicae Sedis in regard to exempted parishes.

IV. From this it will be seen that our Baltimore decree

differs from the general law in this, that the former requires

merely the advice of the consultors, the latter the consent of

the chapter. In fact, as Pope Leo XIII. expressly states in

his constitution RomanosPontificcs"

for England and Scot

land, the general law applies only to canonical parishes, or

to parishes having all the conditions prescribed by the

general law, but not to missions not yet erected into canoni

cal parishes.

V. The consent of the chapter, or, with us, the advice of

the consultors, in the case must be preceded by a full discus

sion of the cause calling for the division, or praecedente trac-

tatu, as canonists say. In other words, the chapter should

give its consent, or our consultors their advice, only after

havingfully discussed with the bishop the causes calling for

the division, their existence, their sufficiency, and in fact

12

Pope Clement V. (1312) in Clem. Si una 2, De Reb. Eccl. Al. (iii. 4); Card,

de Luca, De Benef., disc. 45, n. 4; Letter., De Re Benef., 1. i., q. 28, n. 60;

Bouix, De Paroch., p. 270.

13 Can. Sine exceptione 52, c. 12, q. 2; Leur., For. Benef., p. 3, q. 954,

n. 7.

14

Cap. Dudum, De Reb. Eccl. non Al. in6" (iii. 9); Letter., De Re Benef.,

1. i., q. 28, n. 4, 152; Leur., 1. c., q. 954, n. 8.






cannot place a religious community in charge of a parish or

mission, without having previously taken the advice of the

.consultors. Our statutory law, therefore, differs from the

general law in this, that the latter requires the consent of the

chapter, the former merely the advice of the consultors.

III. The Third Plenary Council of Baltimore (n. 20) enacts

furthermore that besides the advice of the consultors, the

permission of the Holy See is also required, before a mis

sion or a parish can be given over to a religious community.Herein our statutory law agrees fully with the general law

of the Church, as in force at the present day. For it is cer

tain that at present, according to the general law, parishes

cannot be committed to a religious community without leave

from the Holy See. This has been decided a number of

times by the S. C. C.20

IV. The chief reason is that regulars, though not abso

lutely speaking debarred from the charge of parishes by the

nature of the religious state,21

are yet intended by their state

of life not to mingle with seculars as much as a parish priest

should,in order to

dischargehis duties

properly. Hencethe Holy See reserves to itself the right to decide in every

case, whether it is expedient or not, to allow regulars to be

placed over parishes.

V. Bouix(1. c., p. 51) says that religious communities

which have no solemn vows do not seem comprised in the

above law making the pontifical permission necessary. This

opinion appears to us untenable. For the giving over of a

parish to a religious community is a species of alienation,

no matter whether the community in question has solemn

vows or not. Now such alienation requires not merely the

consent of the chapter (with us, advice of consultors),, but

also the dispensation of the Holy See.

VI. Whatever may be said on this head, it is certain that

20Bouix, De Jure Reg., vol. ii., p 46.

21Bouix, De Jure Reg., vol. ii., p. 9.



506 Rights and Duties of our Diocesan Consultors

with us the law requiring both the advice of the consultors

and the papal consent before a bishop can give a parish

over to a religious community applies to all religious com

munities, whether they have solemn vows or only simple.

This was expressly declared by the Cardinals of the Propa

ganda in the conferences held at Rome in 1883, between our

archbishopsand a committee of the Cardinals of the S. C. de

P. F.

ART. IV.

The Bishop is obliged to ask the Advice of the Consultors in

appointing the Deputies for the Diocesan Seminary.

I. The Third Plenary Council of Baltimore, n. 20, thus

states the fourth case in which our bishops are obliged

to act with the advice of their consultors :

"

Consul-

torum consilium exquiretur in constituendis deputatis pro

seminariis dioecesanis." In order to carry out as nearly as

possible the prescriptions laid down by the Council of

Trent,22

and explained above (n. 5 59),-the Third Plenary Coun

cil

decrees that for every seminary, whether minor or major,whether diocesan or provincial, two committees shall be ap

pointed one for the spiritual or internal, the other for the

temporal, management of the seminary. Each of these com

mittees is composed of at least one ecclesiastic. For the dio

cesan seminary, the members of both these committees are

chosen by the bishop with the advice of the consultors ; for

the provincial seminary they are appointed absolutely bythe bishops of the province collectively without the advice

of diocesan consultors.23

This mode of appointment differs

considerably from that prescribed by the Council of Trent,"

and explained above (n. 559).

II. According to De Brabandere, the professors and

2-2

Sess. xxiii., c. 18, De Ref.23

Cone. PL Bait. III., n. 179.24

Cess, xxiii., c. 18, De Ref. 95 Vol. ii. p. 152.




directors of seminaries are not eligible as deputies or mem

bers of these committees, lest they should be at the same

time both judges and interested parties.

III. Removal of these Deputies. By the general law of the

Church, the members of both the committees on the man

agement of seminaries are irremovable or perpetui, inamovi-

biles (supra, n. 559).26

The deputies for our seminaries pos

sess all the rights and privileges given to committees on

seminaries by the general law of the Church and the Coun

cil of Trent, except where the contrary is expressly stated

by the Third Plenary Council of Baltimore. Now this Council

does not say that our deputies are removable;in fact, it

says nothing at all on this point. The inevitable conclusion,

therefore, seems to be that they are irremovable. However,

there is a difference between the irremovability of these

deputies and that of irremovable parish priests. The latter

can be removed only for crime, while the former can be re

moved also because of old age, sickness, and the like, by

which they become incapable of discharging their duties as

deputies."

ART. V.

Our Bishops are bound to ask the Advice of the Diocesan Con-

suitors in appointing a New Diocesan Consultor, and also in

appointing Synodal or Pro-synodal Examiners.

I. The fifth case in which thebishop,

withus,

is

obligedto ask the advice of the consultors is thus set forth by the

Prelates of the Third Plenary Council of Baltimore :"

" Item

consultorum consilium necessarium erit in eligendo novo con-

sultore, et in eligendis e.raminatoribus qui sint loco synodalium."

26S. C. C. in Papiens., 7 Julii, 1591; in Tricaric., 24 Martii, 1736; Bouix, De

Cap., pp. 428, 436.

21Bouix, De Cap., p. 436. jj. 20.






V. According to the Council of Trent, the synodal ex

aminers must be appointed in diocesan synod. The manner

in wnich they are appointed is this : They are proposed or

nominated by the bishop in diocesan synod, and must be ap

proved by said synod. In other words, they are appointed

by the bishop with the advice and consent of the synod.33

The examiners thus appointed in synod remain in office till

the next diocesan synod, which should be held within the

space of a year from time of the last synod. In the new

synod the old examiners may be either reappointed or

others chosen in their stead.34

If, however, during the course

of the year which intervenes between the old and the new

synod the number of the examiners chosen in synod is re

duced, v.g., by death, resignation, or other cause, to less than

six, t he bishop can appoint others, out of synod indeed, though

not without the consent of the chapter. But if the number is

not decreased below six, the bishop cannot substitute others

extras Y nodically.

35

VI. This refers, however, only to the year which follows

immediately

on the celebration of the last diocesan

synod.Now, what is to be done if no new synod is held after the

lapse of a year from the time the last synod was held? It is

certain that as soon as the year has expired, the office of

those examiners expires at once, who were appointed extra-

synodically, as above, during the course of the year, with the

consent of the chapter.3

As to the other examiners who were

elected in the last diocesan synod, it is also certain that theyhold over till the next diocesan synod, no matter how long

it is deferred, provided there remain six of those examiners.

But as soon as one of these six dies or resigns, or in some

other way ceases to be an examiner, so that the number of

those chosen in the last synod is reduced to less than six, the

33 Cone. Trid., sess. xxiv., c. 18, De Ref. 34 Cone. Trid., 1. c.

35 Bened. XIV., De Syn., 1. iv., c. 7, n. 7.

36 Bened. XIV., De Syn., 1. iv., c. 7, n. 8.




office of ail the others expires by that very fact; and the

bishop cannot, after the lapse of one year from the time the

last synod was held, substitute any examiners extrasynodi-

cally in the place of those who ceased to be examiners/17

VII. Therefore, if after the lapse of one year from the

time the last synod was held, or any time thereafter, there

remain less than six

examiners,chosen in

synod, the bishopmust either convene another synod or apply to the Holy See

for permission to appoint examiners out of synod. For if the

bishop held a concursus with examiners appointed out of

synod, a year after the last synod, without having obtained

leave from the Holy See, the concursus would be null and

void.38 The Holy See always grants this permission, though

only on condition that the examiners .be proposed by the

bishop to the chapter and approved^ it; hence the consent

of the chapter is requisite. Brabandere says the Holy See,

at present, grants this permission usually for three years.

The examiners appointed out of synod are called examinatores

prn-synodales. From what has been said, it will be seen that

synodal examiners when appointed in synods must be ap

pointed with the consent of the synod ; when appointed out

of synod, with the consent of the chapter.

Q, What is the manner of appointing synodal or pro-synodal examiners in the United States ?

A. We premise: I. Thus far we have explained the provisions of the Council of Trent, or of the general law. Let

us now see how far those provisions have been

adoptedand

enjoined by the Third Plenary Council of Baltimore. 2. This

Council has enacted, as we have shown above, n. 648, that

appointments to missions or parishes which have irremova

ble rectors shall be made by concursus, to be conducted bythe bishop or his vicar-general and the synodal examiners,

in the manner laid down by the Council of Trent.39

For this

E1 Bened. XIV.. 1. c., n. 8. Ib. n., 9.39 Sess xxiv

_ c l8 De Ref



while the See is Filled. 5 1 1

purpose, at least six examiners, if possible, shall be appointed

in every diocese. When a mission which has an irremovable

rector falls vacant, the bishop shall select out of these six at

least three to conduct the examination. The bishop cannot

select less than three, except where it is impossible to have so

many, on account of the small number of priests in a dio

cese.40

We now answer: i. Our synodal or rather pro-synodal

examiners may be appointed either in or out of synod.41

When they are appointed in synod, the advice of the synodis necessary to the

validity of the election. But the consent

of the synod does not appear to be required. Of course, in

this case, the advice of the consultors is not needed. Whenthe bishop wishes to appoint them out of synod, he must ask

leave from the Holy See (the S. C. de P. F.) to do so. Hav

ing obtained this permission, he can appoint them out of

synod, though only with the advice of the consultors** From

this it will be seen that while our examiners have the same

rights and duties as synodal examiners proper, yet they differ

from them so far as concerns the mode of

appointment.Synodal examiners proper, as we have seen, must be ap

pointed in and with the consent of the synod, while our ex

aminers need not. Consequently they are not, in the propersense of the word, synodal or pro-synodal examiners, but ex

aminers who take the place of synodal or pro-synodal examin

ers. This peculiar characteristic or mode of appointment of

our quasi-or vice synodal examiners seems to have been permitted by the Holy See, in view of the fact that our mis

sions, even though having irremovable rectors, are not ca

nonical parishes, in the full sense of the term.43

2. It would seem that our vice-synodal examiners,

whether appointed in or out of synod, remain in office per

manently, and not merely till the next diocesan synod.44

40 Cone. PL Rait. III., n. 41.41

Ib., n. 25. Cone. PI. Bait. III., n. 25.43

Cf. C. PL Bait. III., n. 24. Ib., n. 25.



512 Rights and Ditties of our Diocesan Consultors

3. Finally, whenever the number of our examiners is

reduced to less than the prescribed number (at least six, if

possible), whether by death, resignation, or other cause, the

bishop can and should substitute others with the advice of

the consultors.45

From all this it will be seen that our vice-synodal exam

iners differ

from synodal examiners proper as to the mode of

appointment, as to the time they remain in office, and also

as to the requisite number. We say requisite number ; for

the Council of Trent prescribes that at least six examiners

must invariably be appointed in diocesan synod, and that at

least three of them must always be present at the conairsus ;4K

whereas, in our case, at least six should be appointed, wliere

this is possible," and at least three of them should attend

every concursus, unless three cannot be Jiad.^

VI. Rights and Duties of Synodal Examiners also in the

United States. The rights and duties of these examiners, also

with us, in relation to the manner of conducting the exami

nation, are clearly set forth by the Third Plenary Council of

Baltimore, n. 44 sq., to which we refer the reader. After the

examination or concursus is over, the examiners have the

right and duty to determine what candidates have passed the

examinations, and are consequently worthy to be appointed

to the vacant parish or mission. Those whom they find un

worthy they must reject ;those whom they find worthy,,

they must report to the bishop as worthy. From amongthose whom the examiners

report

as

worthy,it is the

bishops

exclusive right and duty to select him whom before God he

considers the most worthy (dignior)**

VII. Right of Appeal. Candidates who have been exam

ined, and who are not appointed to the vacant parish or

mission, have also in the United States, as we have shown

46Cf. C. PI. Bait. III., n. 25.

46 Cone. Trid., sess. xxiv., c. 18, De Ref41

C. PI. Bait. III., n. 25. i b-) n 4I> 4g49 Bened. XIV., Const. Cum illud, n.




above, a right to appeal a mala relatione examinatorum et ab

irrationabili judicio cpiscopi that is,

50

against the unfair re

port made to the bishop by the examiners, and also against

the wrong action of the bishop in appointing as the dignior

one who is not dignior. In order to make this more clear,

we observe : A candidate may either fail to pass the exam

ination successfully, and consequently be rejected by the ex

aminers or reported by them to the bishop as indignus ; or

he may indeed pass and be reported to the bishop as dignus,

and yet not be appointed. In the first case he can appeal

against the report of the examiners as being unfair and un

warranted, by the result of the examination;in the second

case he has the right to appeal against the appointment made

by the bishop, on the ground that the one whom the bishop

considers the dignior, and whom consequently he has appoint

ed to the vacant parish or mission, is in reality not the dig

nior, but only dignus. If the appellant can prove before

the judex ad quern that the one whom the bishop has ap

pointed is not the dignior, but that he the appellant is the

dignior,then the

appointmentof the

bishopmust

bere

voked, and the parish or mission, also with us, conferred on

the appellant. In both cases, however, the appeal is merely

devotutive, not suspensive, as we have already noted. How

ever, candidates who appeal must prove their allegations,

and that exclusively from the acts and documents of the

concursus, a copy of which must be given them for that pur

pose.

ART. VI.

Necessity of the Advice of the Consultors in the Alienation of

Ecclesiastical Property.

I. The sixth case or matter in which the bishop is bound

to ask the advice of the diocesan corisultors is thus ex-

50 Bened. XIV., Const. Cum illud, 1742, 16 (VI.).



514 Rights and Duties of our Diocesan Consultors.

pressed by the Tliird Plenary Council: Quando agitur de

bcnis et fundis dioccesis vel Missionum permutandis aliisqne

agendis, qnac speciem alienationis prae se fcrunt, ubi sumnia

pecuniae non excedat valorem quinque millium scutatorum

($5000), episcopi liberi erunt;ubi vero negotium earn sum-

mam superaj. tune requiritur consilium consultorum, eoque

praeriabito,necessaria est S, Sedis

permissionIn order to

understand this law better, it will be necessary to explain

briefly the general law of the Church respecting the alien-

ation of ecclesiastical property.

Q. When and how is it allowed, according to the general

law of the Church, as now in force, to alienate ecclesiastical

property ?

A. We premise: I. By ecclesiasticalproperty (res ecclesiae}

is here meant, not merely all property, real or personal, be

longing to churches, chapels, or oratories, used for religious

worship, but also that which belongs to charitable and pious

institutions established by ecclesiastical authority, such as

hospitals, asylums, monasteries, convents, etc. However, only

that property, real or personal, of these churches or institu

tions is here meant which is of considerable value, that is,

which is worth more than $25, or according to some$50,"

or

according to others, $100. Property, real or personal, of less

value than this may be freely alienated.

2. The word alienation is here taken in its widest sense,

and therefore means not merely every act or transaction by

which the ownership is transferred, such as (a) donations, (&)

sales, (c) exchanges or purchase of new property, but also all

acts or transactions by which the use of the property, or Jus

in re or ad rem, is transferred to another, namely, (a) all mort

gages or other incumbrances put upon the property; (b)all

leases for a term longer than three years ;

"

(c)the imposing

51 N. 20.52

Santi, Prael., 1. iii., t. 13, n. 6.

53

Cap.Nulli 5, De reb. eccl. (iii., 13); Clem, i, 2, De reb. eccl. (iii.,

4).



while the See is Filled. 5 1 5

of new taxes, assessments, or contributions by the bishop or

others; (d] the giving up of a lawsuit, when this giving upof the suit involves the loss of the contested property ; (e)

finally, any transaction, agreement, or compromise, by which

a burden, v.g. ya pension, is imposed upon the ecclesiastical

property, even though neither the ownership nor the use of

the property is transferred. 54It will be seen, therefore, that

by alienation is here understood not merely alienation in the

strict sense, but everything else that has the semblance of it,

or whatever is a species alienationis.

Having premised this, we now answer: The rule is that

ecclesiastical property cannot be alienated except (a) for

grave and sufficient reasons of urgent necessity or evident

utility, (b) and with the formalities prescribed by law;other

wise the alienation is ipsojure null and void, and, moreover,both the person alienating and the person presuming to re

ceive ecclesiastical property, thus unlawfully alienated, in

cur,06

among other penalties, excommunication ipso facto,

reserved, however, at present, according to the constitution

ApostolicaeSedis of

PopePius

IX.,to

noone."

We say, first, except for grave and sufficient cause. Now,what are considered by the law grave and sufficient causes?

These two: I. Urgent necessity, v.g., where a church has a

heavy debt and cannot pay it, except by alienating property,or also where a property has become useless.

Gs

2. Evident

utility ; thus it is allowed to alienate property for the pur

pose of acquiring another property which is better and moreuseful/

9

We say, second, with the formalities prescribed by law.

Now, what are these formalities? These two : i. The con-

64 Can. Non liceat 20, c. 12, q. 2; Schmalzg., 1. Hi., t. 13, n. 10.

"

Cf. Schmalzg., 1. in., t. 13, n. 6 sq; Brabandere, Jur. Can. comp. n. 949.66

Reirf.. 1. iii., t. 13, n. 4." Const. Ap. Sedis, 1869, Excom. nem. res. iii.

58Reiff., i. c., n. 18.

59 Can. Sine exceptione 52, c. 12, q. 2; cap. 8, De reb. eccl. (iii., 13).



516 Rig/its and Duties of our Diocesan Consultors

sent of the chapter or others interested.60 When there is

questio-n of alienating the property of the cathedral, or of the

mensa episcopi, or of the diocese, as such, the consent of the

cathedral chapter is required. But when there is question

of alienating the property of the other churches of the dio

ceses, i.e., of the parishes of the diocese, the consent of the

cathedral chapteris

necessary only whenthe

bishophimself

wishes to make the alienation, but not when the rector or

parish priest of the respective church desires to make it.61

In

the latter ease it is sufficient that the rector wishing to make

the alienation should obtain the consent of the bishop.63

It

should be observed here, that the chapter can give its con

sent to the alienation only after it has fully discussed (praece-

dente tractatii) the causes of necessity or utility calling for

the alienation.63

2. Besides the consent of the chapter, the permission of the

Holy See is also required, and that on pain of excommunica

tion incurred ipso facto, as enacted first by Pope Paul II.,64and

re-enacted by Pope Pius IX." Pope Paul II., in his Const.

Ambitiosae decreed that bishops alienating ecclesiastical prop

erty, without leave from Holy See, should incur ipso facto

the interdict ab ingrcssu in ecclesiam. This punishment is not

mentioned in the Const. Apostolicae Sedis of Pius IX., and

therefore is abolished.66 The prohibition to alienate ecclesi

astical property applies not merely when there is question of

alienating ecclesiastical property from a church or religious

institute to laics, but also from one cJinrch to another church.

With these explanations, it will now be easy for us to under

stand when and how the bishop, with us, is bound to act

60Cap. 8, De his. (iii., 10); Schmalzg., 1. c., n. 78.

61Schmalzg., 1. iii., t. 10, n. 2.

62Santi, 1. iii., t. 13, n. 10.

63Reiff., 1. iii., t. 13, n. 23.

"

Cap. Ambitiosae, De Reb. Eccl. Al. vel non, Extr. Com.(iii., 4), A.D. 1468.

66

Const. Ap. Sedis 1869, 1. c.

66

Santi, 1. iii., t. 13, n. 15,

67Cap. i. De Reb. Eccl. Al. vel non, (iii., 13); Santi, 1. c., n. 12.




with the advice of the consultors in alienating1

ecclesiastical

property, as we shall presently explain.

$3Hr"Q-When and how can bishops in the United States

alienate ecclesiastical property ?

A. We premise: What \ve have said above concerning

the meaning of the words alienation and ecclesiasticalproperty

holds fully true, also, with us. This is clear from n. 20 (6)

of the Third Plenary Council of Baltimore, and the decree of

the S. C. de P. F. dated Sept. 25, 1885. For both these docu

ments expressly mention not merely alienation, but also

whatever has the semblance or species of alienation. However,

with us the amount involved in the alienation must exceed

$5000 ;otherwise the bishop is free to make the alienation

without the prescribed formalities.

We now answer : Our bishops cannot alienate ecclesias

tical property where the sum involved exceeds $5000, ex

cept (a) for grave and sufficient cause, as explained above; (b)

with the advice (not consent) of the consultors. This advice is

necessary not only when there is question of alienating the

ecclesiastical

property

of the cathedral or of the

bishops

mensa, or of the diocese at large, but also when there is

question of alienating the property of any of the other par

ishes or missions of the diocese, and that even where the

respective rector, and not the bishop, wishes to make the

alienation. The advice of the consultors must be preceded

by a full discussion of the causes calling for the alienation.

(c) Finally, the permission of the Holy See is also necessary.

However, owing to our peculiar circumstances, Pope Leo

XIII., at the request of the Third Plenary Council of Balti

more, has dispensed all our bishops, for ten years from the

date of the promulgation of the Third Plenary Council, from

the obligation of obtaining the permission of the Holy See,

in every particular case.69

88 Cone. PI. Bait. III., n. 20."

Cf. Cone. PI. Bait. III., p. ciii.



518 Rights and Duties of our Diocesan Consiiltors

ART. VII.

Necessity of the Consultors Advice for the Imposing of new

Taxes for the Bishop.

I. The seventh case in which the bishop is bound to take

the advice of the diocesan consultors is thus statedby

the

Third Plenary Council of Baltimore (n. 20).-"

\\.zv&, praehabito

consilio consultorum, necessarius erit rccursus ad S. Sedan in

singulis casibus, in quibus agatur de imponcnda nova taxa pro

episcopo, quae excedat limites a canonibns constitutos." In other

words: In all cases where there is question of imposing a

new tax, collection or contribution for the bishop, which

goes beyond the rules laid down by the sacred canons, the

bishop is bound to take the advice of the consultors; and

after this advice has been taken, it is also necessary to have

recourse to the Holy See, and that in each individual case.

II. Here two questions arise : What is meant by taxa

nova pro episcopo ? and by the clause quae excedat limites a

canonibus constitutes? We reserve the answer for a future

edition of this work. Suffice it here to say that, owing to

the general terms in which these phrases are couched, and

the consequent difference of opinions as to their meaning, it

is desirable that an authentic explanation of them be given

by the Holy See; especially as the phrases were inserted by

the Holy See itself, when the acts and decrees of the Third

Plenary Council of Baltimore were submitted to the S. C. de

Prop. Fide for revision. Until such an authentic explanation

is given it would appear unsafe, or, at least, unsatisfactory,

to attempt to give any private or doctrinal explanation,

that would commend itself to the approval of others.



while the Sec is Filled. 519

ART. VIII.

Several other Cases in which the Bishop is bound to ask the

Advice of the Diocesan Consultors.

Besides the above seven cases, there are several other

matters where our bishops are expressly obliged by the

Third Plenary Council of Baltimore to act with the advice of

the diocesan consultors. Thus he is bound to ask this advice,

i, in determining what missions shall be made parishes with

irremovable rectors;70

2, in appointing the first irremovable

rectors;71

3, in fixing the amount of the pension (pensio

congrud) to be accorded to an irremovable rector who resigns

or is removed because of inculpable inability to discharge

his parochial duties;

*

4, in determining out of synod what

shall be the salary of rectors, and in settling certain other

questions connected therewith;73

5,in making laws and

regulations, out of synod, respecting the jura stolae and the

taxes to be given to rectors, on occasion of the administration

of the Sacraments and other acts of the sacredministry.

74

The rate of these jura stolae as fixed in synod must also be

sent to Rome for approval.

ART. IX.

Meetings of the Consultors.

Thus it will be seen that there are altogether twelve

cases where the bishop is expressly obliged by the Third

Plenary Council of Baltimore to act with the advice of the

diocesan consultors, and where consequently his acts are

ipso jure invalid if he fails to take the advice in question.

70

C. PL Bait. III., n. 33.7I

Ib., n. 37.

72Ib., n. 38, vii.

13Ib., n. 273.

74Ib., n. 2Q4.



52O Rights and Duties of our Diocesan Consultors.

The consultors must in all these cases give their opinion cr

advice collectively, that is, in a body, like chapters proper,7 &

or

like every corporation or moral body. In other words, they

must be properly convened in council meeting, and when

thus assembled, give their opinion by vote, after having

duly discussed the matter on which their advice is asked.

They may vote by secret ballot as often as they deem it

proper. The ordinary meetings of the consultors must be

held four times every year, at stated times, or, where this

cannot be done, at least twice a year. The extraordinary

meetings must take place as often as it is necessary for the

bishop to do something, where, as stated above, he must take

the advice of the consultors.76

Both the ordinary and extra

ordinary meetingsare called and

presided over bythe

bishop.77

Cf. Reiff., 1. iii., t. xi., n. 11-22. C. PL Bait. III., n. ai. Ib,



CHAPTER III.

RIGHTS AND DUTIES OF OUR DIOCESAN CONSULTORS

DURING THE VACANCY OF THE SEE.

ART. I.

Appointment of the Administrator.

I. Hitherto we have discussed the rights and duties

which our consultors possess, during- the time the see is filled

sede plena. But what are their rights and duties when the

bishopric falls vacant? These rights and duties refer chiefly

to the power to govern the vacant diocese ad interim, and

to the choice of the new bishop. We shall first explain upon

whom devolve the administration of the vacant diocese and

the choice of the newbishop, by

thegeneral

law of the

Church, and then see whether and how far the powers con

ferred by this general law upon chapters are vested in our

consultors.

II. When a see falls vacant, whether by the death, resig.

nation, transfer, or removal of the bishop, its administration

and government, for the whole time of the vacancy, belong,

by the general law of the Church,1

as a matter of right, not

merely of privilege, favor, or delegation, to the cathedral

chapter of the vacant diocese,3

as we show above, n. 635.

However, at present, the chapter cannot govern the vacant

1

Cap. 3, 4, De Suppl. Neg. in 6(i. 8), by Pope Boniface VIII. (1299); Cone.

Trid., sess. vii., c. 10. De Ref.

2 Canonists usually discuss the rights and duties of chapters, while the

see is vacant, under the heading We sede vacante aliquid innovetur, under which

title the decretals also touch upon these matters.

521




diocese collectively or in a body, but is bound, within eight

days after it is informed of vacancy, to appoint or rather

elect a vicar or vice gerent, or administrator, whose right

and duty it is to govern and administer the diocese in the

name of the chapter, and as its vicar, agent, or representa

tive. This administrator is consequently Vicarius Capitularis,

or vicar of the chapter.

III. These rights are also vested in and exercised at pres

ent by chapters in Ireland3

andEngland." They are not

vested in our diocesan consultors. For diocesan councils,

as established by the Third Plenary Council of Baltimore, are

not cathedral chapters, and therefore cannot be said to be

possessed of rights which the law confers on cathedral chap

ters proper, unless the contrary is expressly stated. Nowthe TJiird Plenary Coiincil of Baltimore makes no mention

whatever of any of the above rights being vested in diocesan

councils. Wherefore the administration of a vacant diocese

does not devolve upon our consultors, and consequently the

appointment of the administrator remains now, as before the

Third Plenary Council, in the hands of the bishop, or metro

politan or senior suffragan bishop, as explained above, n.

638.

ART. II.

When the Administrator must take the Advice of the Consultors.

However, as the administrator or rather vicar-capitular

appointed by the cathedral chapter must act with the advice

and consent of the chapter, in all cases where the bishop him

self is obliged to do it, so, likewise, are administrators with

us, though not appointed by the consultors, bound to take

the advice of these consultors in all matters where the bishop,

himself is obliged to take this advice.5

3C. PI. Hiberniae, apud Maynut., p. 273 sq.

4

Cone. Prov. Westmon. I., n. xii. i; Coll. Lac., vol. iii., p. 924.

6 C. PI. Bait. III., n. 22.



during the Vacancy of tlie See.523;

ART. III.

Rights of the Consultors in the Election of the new Bishop,

I. The second right and duty which the cathedral chap,

ter has by the general law of the Church is to elect the new

bishop of the vacant diocese. The reason of this law is thus

stated by Schmalzgrueber :

6"

Jus eligendi episcopum con-

cessum fuit capitulo cujusque ecclesiae. Et merito, nam

illi, qui sunt de corpora ecclesiae, melius censentur informati

esse de necessitatibus et commodis ecclesiae, quam alii ex-

tranei. Igitur quando agitur de provisione capitis, per quod

praecipue gubernari debet ecclesia (dioecesis), ad ipsa membra ecclesiae spectare decet electionem potius quam ad alios

non ita informatos."

However, at the present day, in all parts of the world

save in some dioceses of Germany, the Roman Pontiffs have

reserved to themselves the right of election proper, leaving

to chapters and others merely the right of nominating or

rather

commendingthe candidates for the vacant see. See

above, n. 297 sq., and n. 343.

This right of recommending to the Holy See candidates

for the vacant diocese is vested in parish priests and chap

ters in Ireland, in chapters in England, and at present, ac

cording to the discipline introduced by the Third Plenary

Council of Baltimore, also in our diocesan consultors and

irremovable rectors, as explained above, n. 345 sq.

6 Lib. i., tit. 6, n. 3.



SUPPLEMENTARY NOTES.

MODE OF QUOTING FROM THE "CORPUSJURIS."

(a) n. l6l.

Q. What is the mode of quoting from the"

Corpus Juris

Canonici"

?

A. I. From the"

Decretum"

of Gratian. Quotations

from the first part of the"

Decree"

are usually made thus :

C. Regula, 2, d. 3 that is, canon the second, beginning with

the word "

Regula," distinction third. Some authors omit

the first word of the canon and quote thus: C. 2, d. 3.

Others omit the number of the canon, quoting thus: C.

Rcgula, d. 3. Quotations from the second part of the " Decree

"

are generally thus made : C. Omnes, 4, c. 6, q. i that

is, the fourth canon, whose first word is"

Omnes," of the

first question under the sixth cause. Some authors omit

the first word of the canon; others its number. The third

question of the thirty-third cause is a treatise on penance,

divided into seven special distinctions, and usually quotedas follows: C.

Qualitas, 2,d.

5,d.

Poenit.tt\z.t is, the secondcanon, whose first word is

"

Qualitas,"of the fifth distinc

tion in the treatise on penance.1

Quotations from the third

part of the"

Decree"

are generally made thus : C. Ut osteu-

deret, 123, d. 4, de Consecr. that is, the I23d canon, beginningwith the words " Ut ostenderet," of the fourth distinction

in the treatise on consecration. To Gratian s"

Decree"

Phillips, Kirchenr , vol. iv., p. 154.

524



Supplementary Notes. 525

are annexed " Canones Apostolorum"

and " Canones poeni-

tentiales." The latter are quoted : C. Poenit. 14 that is, the

fourteenth penitential canon;the former : C. Apost. 15 that

is, the fifteenth apostolic canon.

II. From the Decretals of Pope Gregory IX. In quoting

from the books of the decretals, the first word of the chap

ter is usually given ; then the title of the book ; next the

letter X, which stands for extra, showing that the citation

is not from Gratian s"

Decree." Here is a specimen quo

tation : Cap. Quotiens X, de Pactis that is, the chapter be

ginning with the word "

Quotiens,"under the title

" de Pac

tis,"in the decretals. The easiest way to find the text of this

quotation is to run over the alphabetical index attached to

the decretals, find the letter P, where it will be seen that

the title" de Pactis

"

is the thirty-fifth title of the first book

of the decretals. Quotations from the sixth and seventh

books of the decretals are found in a similar manner.

III. The sixth and seventh books of the decretals are

quoted like the five just mentioned, with the addition, re

spectively,in 6 and in

7,which means in the sixth or

seventh book of the decretals.

IV. The "

Clementinae"

are thus quoted : Clem. Multo-

rum, de Poenis that is, in the" Clementinae

"

(collection of

decretals by Pope Clement V.), the chapter beginning with

the word Multorum, under the title"

de Poenis." To find

this place, the title" de Poenis

"

should be looked for in the

index appended to the

"

Clementinae," and it will be seenthat this is the eighth title of the fifth book of the " Clemen

tinae."

V. Quotations from the"

Extravagantes"

of Pope John

XXII. are as a rule thus made : Extrav. Ecclesiae, de Major,

et Obed. that is, the chapter whose first word is Ecclesiae,

under the title" de Majoritate et Obedientia," in the

" Ex

travagantes"

of John XXII.VI. Quotations from the "Extravagantes Communes"



526 Supplementary Notes.

are thus made: Extrav. Comm. Etsi, de Praeb. et Dignti.

that is, the chapter beginning with the word Etsi, under the

title"

de Praebendis etDignitatibus," in the

"

Extrava

gantes Communes." This title, if looked for in the index,

will be found to be the second title of the third book of the

"

Extravagantes Communes."3

IRREMOVABLE RECTORS IN THE UNITED STATES.

(ft)n. 260.

Can Bishops in the United States make more than one of

every ten rectors irremovable, ivithin the first twenty years after

the promulgation of the Third Plenary Council of Baltimore ?

They can,if

they considerit

prudent. Forthe

ThirdPlen

ary Council of Baltimore (n. 35) merely advises bishops not

to exceed the above number, inconsulte, i.e., without good

reasons.

SENTENCES EX INFORMATA CONSCIENTIA.

(tf)n. 445-

What do we mean by sentences ex informata conscientia f

Is every extrajudicial act or sentence of the bishop an act or

sentence ex informata conscientia simply because it is extra-

judicial? In other words, are the terms"extrajudicial"

and "

ex informata conscientia"

always synonymous ? By no

means. For by sentences"

ex informata conscientia"

we un

derstand only two kinds of extrajudicial sentences namely,

where the bishop, by virtue of C. i., d. R., sess. xiv. C. Trid.,

extrajudicially, I, either forbids a person to receive sacred

orders, 2, or suspends him from orders already received.

In these two cases only, there is no appeal or recourse to

the metropolitan, but only to the Holy See. From other

1Craiss., Man., n. 194, sq. ; Bouix, de Princ., p. 490.




cxtrajudicial acts or sentences of bishops an appeal can gene

rally be made to the metropolitan, since they are not acts or

sentences "ex informata conscientia," though extrajudicial.

Observe, also, that dismissal from parish, even in the United

States, not being per se suspension, cannot be inflicted"

ex

informata conscientia/ and therefore allows of appeal to the

metropolitan.4

A.POSTOLI, OR CERTIFICATE OF APPEAL FROM THE SUPERIOF

"A QUO" TO THE SUPERIOR "AD QUEM."

(e) n. 453.

According to Cardinal Soglia,6

these"

apostoli,"or let

ters from the superior"

a quo"

to the superior"

ad quern,"

certifying to the appeal, are no longer, at least universally,

in use;and in their stead the appellant is given a copy both

of the sentence or decree from which he appeals and of the

appeal itself, as authenticated by ihejiidex a quo* This copy

or certificate of appeal (apostoli},where given, is presented

by the appellant to the superior ad quern ; and the latter, if

he admits the appeal only"

in devolutivo," gives the appel

lant mandatory letters, commanding the superior" a quo

to forward to him, within a stated time, the acts in the case;

but if he receives the appeal"

insuspensive," he, moreover,

issues letters (litterae inhibitoriales] commanding the superior"

a quo"

not to proceed an}^ further in the case/

EFFECTS OF APPEALS.

(C). 453-

We premise : By the judex a quo is meant the superior

{v.g. , bishop) from or against whose decision the appeal is

1Bouix, de Episc., t. i., p. 474.

*

Id., de Judic., t. ii., p. 252.

*

Tom. ii., p. 525.

*

Devot ,lib.

iii.,tit.

xv.,n.

n.*Soglia, 1. c., D. 526.




made : by the judex ad quern, the superior (v.g.> metropoli

tan or pope) to whom the appeal is directed.

I. Effects of Appeals on the Superior "aquo"

I. He if

bound to defer to any appeal interposed for just cause.

Now, in order that the cause of the appeal should be con

sidered just, it is not necessary that its existence should be

actually verified, but merely that it be of such nature that,

if its existence were proved, it would be considered legiti

mate. 2. If the superior a quo does not defer to a lawful ap

peal, he becomes liable to deposition (at least when there is

question of appeals to the Holy See) or other penalty at the

discretion of the proper superior; and the appellant may,

notwithstanding, continue his appeal. 3. In case of doubt

whether there is

justcause for

appealing,he should defer to

the appeal, especially when made from a final sentence.

4. In cases where appeals are forbidden by canon law

(supra, n. 445, sq.), or where interposed frivolously, he (the

superior a quo) need not, nay, should not, defer to them,

and may, notwithstanding the appeal, proceed in the case

without rendering himself liable to punishment. 5. But

even where he lawfully refuses to consent or defer to the

appeal he should, nevertheless, give the appellant letters

certifying to the appeal (apostoli), or an authentic copyof the sentence and of the appeal as made known to him.

Bouix8

holds that the authentic copy or apostoli are always

to be given.

II. Effects upon the Superior" ad

quern"What is the duty

of the superior ad quern with regard to appeals brought to

his tribunal? i. He should first of all determine whether

the appeal was properly interposed. Before doing so he can

not take cognizance of the cause itself, nor remit it to the

superior a quo. 2. If he decides that the appeal has been prop

erly interposed, the whole case devolves co ipso upon him for

8 Supra, n. 453. Cf. Bouix, de Judic., t. ii., p. 286.




adjudication, no matter whether the appeal was from a final

or interlocutory, judicial or extrajudicial, sentence. Hence

it is his duty to try the whole case, and he can send for persons and papers, and demand an authentic copy of the min

utes or acts of the court or superior from whom the appealis made. He can pronounce final sentence, and also enforce

it, unless an appeal is also made from his decision. 3. Whenhe has been notified of an appeal made to him with the

requisite formalities that is, within the proper time, au

thenticated by the superior a quo, etc. he can at once that

is, as soon as he begins to consider theadmissibility of the

appeal forbid the superior a quo to execute his sentences

if final : but if the sentence be not final he can do so onlyafter it has been shown that the appeal is admissible, ac

cording to the canons, and that in the presence of the parties.

This brings us to another very important effect of ap

peals, which is thus expressed : Whatever ulterior steps are

taken in the case by the superior a quo, after the appeal has

been interposed and pending the appeal, are to be considered

as vain and futile attempts (attentata), which are of no

effect and should be rescinded. Now, what in particularare to be looked upon as attempts of this kind ? We an

swer: All such steps as are taken by the superior a quo

against the appellant either after the appeal from a final or

quasi-final sentence (judicial or extrajudicial) was interposed,or even during the time intervening between the pronounc

ing

of the sentence and the

makingof the

appeal. Now,how are these attempts to be reversed? i. The superiorad quern can annul them both

cx-officio, and at the request of

the appellant. 2. They can, nay, should, if the appellant so

asks, be revoked, even before it is shown that there was a

just cause for appealing, and before the hearing of the

cause itself takes place ;and this holds true not only with

regard to appeals from final or interlocutory sentences hav-



530 Supplementary Notes*

ing the force of final sentences, but also with regard to

appeals from extra] udicial acts.9

THE VISIT AD "

SS. LIMINA"

BY THE BISHOPS OF IRELAND.

(1?)n. 472.

Q. How often are the bishops of Ireland at present to

make their visit ad limina ?

A. At first (Const.Romanns Pontifex ann. 1585) they were

bound to make the visit every four years; afterwards

namely, from 1631 only every ten years. But at present,

according to the decree of the Propaganda, dated September

i, 1876, theyare

obligedto make the visit ad limina- once

every five years. (Apud Cone. PI. apud Maynooth, A.D

1875, p. 281.)

HOW THE TERMS, WHETHER OF THREE, FOUR, FIVE, OR TEN

YEARS, FOR THE EPISCOPAL VISIT "AD LIMINA SACRA"

ARE TO BE COUNTED.

(8) n. 472, 556.

IJOir From what has been said above (n. 556), it follows that

if, for instance, the visitation for the decennium beginning

with December 20, 1885, and ending with December 20, 1895,

has been made by the bishop or his procurator, at any time

during said period, the successor of such bishop, even though

he is

appointedseveral

years

before the expiration of De

cember 20, 1895, need not make the visitation during the

period of 1885-1895. On the other hand, if a bishop who is

appointed even but a few months before December 20, 1895,

finds that none of his predecessors has made the visit within

1885 and 1895, he is bound to make it before December 20,

1895, unless he obtains a dispensation from Rome. Likewise,

where a new diocese is established with us,for instance in

9Bouix, de Judic., vol. ii., pp. 285-293; Craiss.. a. 5990, sq.




1887, the decennial term within which the first bishop is

obliged to make his first visit ad limina, does not begin from

the time the new diocese was formed 1887, but from De

cember 20, 1885, and ends December 20, 1895.10

THE RIGHT OF OPTION VESTED IN CARDINALS,

(z)n. 496.

Q. What is the right of option (jus optandi) of cardi

nals?

A. It consists substantially in this, that when a subur

bicary bishopric, or a title, or a diaconate becomes vacant,

the next oldest cardinal (by creation) of the respective

order has a right to give up his own title and choose the

vacant one. Thus, if the see or title of a cardinal-bishop

becomes vacant, the next oldest cardinal-bishop can select

it;

if the title or church of a cardinal-priest falls vacant, the

next oldest cardinal-priest can choose it.11

Nay, sometimes

a cardinal of one order may select the title of another order.

Thus, the oldest cardinal-priest can choose the title, when

vacant, of the youngest cardinal-bishop ; and the oldest

cardinal-deacon that of the youngest cardinal-priest. More

over, a deacon, when ten years a member of the Sacred Col

lege, precedes in the exercise of the right of option cardi

nal-priests created after him. This right of option belongs

only to cardinals resident in Rome or absent temporarily

for a public cause."

THE PROPAGANDA AND MISSIONARY COUNTRIES.

(*) n. 508.

In order not to be misunderstood in regard to what we

say under n. 508, we here observe that affairs or questions10 Cone. PI. Bait. III., n. 13; Instr. S. C. de P. F. June i, 1877, in C. PI

Bait. III., p. 197.

11

Phillips, Kirchenr.. vol. vi., p. 238.n

Id., Comp., ed Vering, no.




from missionary countries are sometimes referred by the

Propaganda to, and decided by, one of the other congrega

tions charged with the specific matter. But, in all cases,

the Propaganda is the organ of communication. Hence,

no matter whether the Propaganda itself solves the ques

tions or merely causes them to be solved by one of the

other congregations, the petitionsor

questionsmust

alwaysbe addressed to, and the answers or dispensations are always

returned by, the Propaganda. Therefore all affairs of ms-

sionary countries are arranged solely by the Propaganda,

at least as the organ of communication.

RECENT DECISION OF THE HOLY SEE CONCERNING THE

CUSTOM PREVALENT IN SOME PARTS OF THE UNITED

STATES OF RECEIVING A NUMBER OF ALMS OR STIPENDS

FOR THE MASS ON ALL SOULS DAY.

(A) n. 593.

The following case was submitted to the Propaganda by

one of the bishops in the United States:

Compendium facti. Reverendissimus Episcopus R. in

America ad Emum. Praefectum S. Congr. de Prop. Fid.

epistolam misit sequentis tenoris :

"

In pluribus Foederatorum Statuum Americae Septen-

trionalis dioecesibus, et etiam in hac mea R. invaluit con-

suetudo ut pro unica Missa quae in die commemorationis om

nium fidelium defunctorum cantatur, fideles contribuant pe-

cuniam. Summa autem pecuniae sic collecta ordinarie tanta

est, ut plurium centenarum Missarum eleemosynas facile

exaequet. Inter eos qui pecuniam hoc modo contribuunt,

plurimi sunt de quibus dubitari merito possit, utrum earn

hoc modo collaturi forent, si rite edocerentur animabus

purgatorii, quas sic juvare intendunt, melius provisum iri,

si tot Missae pro iis, licet extra diem commemorationis




omnium fidelrum defunctorum, celebrarentur, quot juxta

taxam dioecesanam continentur stipendia in summa totali

sic contributa.

" Ut erroneae fidelium opinioni occurratur, in quibusdam

dioecesibus Statute Synodali cautum est, ut, nisi singulis

annis praevia diligens totius rei explicatio populo fiat,

missionariis earn fidelium pecuniam pro unica ilia Missa

accipere non liceat.

"

Quare Eminentiam Vestram enixe achumillimeprecor,

ut pro pace conscientiae meae, ad dubia sequentia respon-

dere dignetur:"

i. Utrum praedicta consuetude absolut* prohibenda sit ?

Quod si negative :

"2. Utrum tolerari possit casu quo quotannis praevia

ilia diligens totius rei explicatio populo fiat? Quod si

affirmative :

"

3. Utrum, si timor sit ne vel missionarii praeviam

illam diligentem eamque plenam totius rei explicationem

populo praebeant, vel populus earn satis intelligat, ordina-

rius istam consuetudinem prohibere possit, et missionariis

injungere, ut pro tota summa contributa, intra ipsum men

sem Novembris tot legantur vel cantentur Missae, quot in

ea continentur stipendia, pro Missis sive lectis, sive canta-

tis ? Quod si affirmative :

"

4. Utrum ob rationem, quod Missae illae intra ipsum

mensem Novembris legendae vel cantandae sint, ordina-

rius consuetum Missarum sive

legendarumsive cantandarum

stipendium, pro aequo suo arbitrio pro illis Missis possit

augere ?"

On January 27, 1877, the S. C, Concilii, to whom the

case had been referred by the Cardinal- Prefect of the Propa

ganda, gave the following answer :

Responsum :"

Nihil innovetur;tantum apponatur ta-

bella inecclesia, qua

fidelesdoceantur, quod illis ipsis elee-




mosynis una canitur Missa in die commemorationis omnium

fidelium defunctorum."

THE RECENT PLENARY SYNOD OF MAYNOOTH ON THE

REMOVAL OF PARISH PRIESTS.

O) n. 648.

Q. How are parish priests removed in Ireland, according

to the Plenary Council of Maynooth, held in 1875 ?

A. We premise : In Ireland parish priests are appointed

for life, and they were not made removable at pleasure by

the Synod of Maynooth. We now answer : The Synod of

Maynooth insinuates that in the dismissal of parish priests

the forms of regular canonical trials cannot be observed in

every particular, and seems to leave the determination of the

particular mode of conducting trials to the provincial councils

of the respective provinces. However, it refers to the mode

adopted in England, and would, therefore, seem to recom

mend that parish priests in Ireland be finally dismissed upon

trial to be conducted by the committee of investigation of

the diocese, composed of five priests.18

DIFFERENCE BETWEEN THE CELEBRATION AND BLESSING

OF A MARRIAGE.

(v] n. 659.

We distinguish, as will be observed (n. 659), between"

assisting at"

and "

blessing"

a marriage. For by the

blessing of the marriage is not meant the celebration of the

marriage itself or the act of uniting in marriage, nor the

verses Confirma hoc, etc., with the prayer Respice, which are

always said after the blessing and the giving of the nuptial

"

Syn. PI. Mayn., n- 261 ;cf. ib , p. 248.




ring, but those prayers which the missal prescribes in the

Mass "

pro sponso etsponsa."

This blessing (benedictio nup-

tialis] or the one that takes its place on days impeded by the

Rubrics, can be given only in the Mass "

pro sponso et

sponsa";it is distinct and separable from the celebration

of the marriage. Thus, the marriage itself may be performed

byone

priest,and the

nuptial blessing given byanother.

CAN NON-CATHOLICS BE SOMETIMES BURIED IN CATHOLIC

CEMETERIES ?

() n. 66 1.

In the United States Catholics having family lots in Ca

tholic cemeteries sometimes wish to have non-Catholic rela

tives or members of the family buried in such lots. Can it

be allowed? Some say yes, in view of the words of the

Fathers of the Second Plenary Council of Baltimore:14

" Ex mente Sedis Apostolicae toleratur, ut in sepulchris

gentilitiis {family lots), quae videlicet privata et peculiaria

pro Catholicis laicorum familiis aedificantur, cognatorum et

affinium etiam Acatholicorum corpora tumulentur." Others

maintain the negative, except in regard to family vaults

or vaulted sepulchres for families.

(o)n. 659.

Father Perrone demonstrates that the true teaching (doc-

trina vera) is that both mixed marriages and the marriages of

Protestants among themselves, in places where the decree Ta-

metsi obtains, when solemnized contrary to the prescriptions

of this decree, are invalid,15

unless, by a special and express in-

dultofthe Holy See, the declaration of Benedict XIV. regard

ing marriages in Holland and Belgium has been extended to

such places.10

So far as the U. S. are concerned, it seems that

the declaration of Pope Benedict XIV. has been extended to

nearly all,if

not all, places where the decree Tametsi

obtains.

"

N. 389.15

Perrone, De Matr. Christ., vol. ii., p. 230.16

Ib., pp. 209-239.



APPENDIX.

i.

CONSTITUTIO SS. D. N. PIT PP. IX., QUA NUMERUS CEN-SURARUM LATAE SENTENTIAE RESTRINGITUR.

D. 12. OCT., 1869.

PIUS EPISCOPUS SERVUS SERVORUM DEI AD PERPETUAMREI

MEMORIAM.

Apostolicae Sedis moderation convenit, quae salubriter veterum canonumauctoritate constituta sunt, sic retinere, ut, si temporum rerumque mutatio

quidpiam esse temperandum prudenti dispensatione suadeat, eadem Apos-tolica Sedes congruum supremae suae potestatis remedium ac providentiam

impendat. Quamobrem cunvanimo nostro jampridem revolveremus, ecclesi-

asticas censuras, quae per modum latae sententiae ipsoque facto incurrendae

ad incolumitatem ac disciplinam ipsius Ecclesiae tutandam, effrenemque im-

proborum licentiam coercendam et emendandam sancte per singulas aetates

indictae ac promulgatae sunt, magnum ad numerum sensim excrcvisse; quas-

dam etiam, temporibus moribusque mutatis, a fine atque causis, ob quas im-

positae fuerant, vel a pristina utilitate atque opportunitate excidisse; eamque

ob rem non infrequentes oriri sive iniis, quibus animarum cura commissa est,

sive in ipsis fidelibus dubietates, anxietates angoresque conscientiae;nos

ejusmodi incommodis occurrere volentes, plenam earumdem recensionem fieri

nobisque proponi jussimus, ut, diligenti adhibita consideratione, statueremus,

quasnam ex illis servare ac retinere oporteret, quas vero moderari aut abro-

gare congrueret. Ea igitur recensione peracta, ac venerabilibus fratribus

nostris S. R. E. cardinalibus in negotiis fidei generalibus inquisitoribus per

universam Christianam rempublicam deputatis in consilium adscitis, requediu ac mature perpensa, motu proprio, certa scientia, matura deliberatione

nostra, deque apostolicae nostrae potestatis plenitudine hac perpetuo vali-

tura Constitutione decernimus, ut ex quibuscumque censuris. sive excommu-

nirationis, sive suspensionis, sive interdict , quae per modum latae sententiae

ipsoque facto incurrendae hactenus impositae sunt, nonnisi illae, quas in hac

536



Appendix. 537

ipsa Constitutione inserimus, eoque modo, quo inserimus, robur exinde habe-

ant;simul declarantes, easdem non modo ex veterum canonum auctoritate,

quatenus cum hac nostra Constitutione conveniunt, verum etiam ex hac ipsa

Constitutione nostra, non secus ac si primum editae ab ea fuerint, vim suam

prorsus accipere debere.

Excommunicationes Latae Sententiae Speciali Modo Romano Pontifici

Reservatae.

Itaque excommunicationi latae sententiae speciali modo Romano Pontifici

reservatae subjacere declaramus:

I. Omnes a Christiana fide apostatas, et omnes ac singulos haeteticos,

quocumque nomine censeantur, et cujuscumque sectae existant, eisque cre-

dentes, eorumque receptores, fautores, ac generaliter quoslibet illorum de-

fensores.

II. Omnes et singulos scienter legentes sine auctoritate Sedis

Apostolicaclibros eorumdem apostatarum et haereticorum haereshn propugnantes, necnon

libros cujusvis auctoris per Apostolicas iitteras nominatiin prohibitos, eosdem-

que libros retinentes, imprimentes et quomodolibet defendentes.

III. Schismaticos et eos, qui a Roman Pontificis pro tempore existentis

obedientia pertinaciter se subtiahunt vel recedunt.

IV. Omnes et singulos, cujuscumque status, gradus seu conditionis fue

rint, ab ordinationibus seu mandatis Romanorum Pontificum pro tempore

existentium ad universale futurum concilium appellantes, necnon eos, quorum

auxilio, consilio vel favore appellatum fuerit.

V. Omnes interficientes, mutilantes, percutientes, capientes, carcerantes,

detinentes, vel hostiliter insequentes S. R. E. cardinales, patriarchas, archi-

episcopos, episcopos, Sedisque Apostolicae legates, vel nuncios, aut eos

a suis dioecesibus, territoriis, terris, seu dominiis ejicientes, necnon ea

mandantes, vel rata habentes, seu praestantes in eis auxilium, consilium vel

favorem.

VI. Impedientes directe vel indirecte exercitium jurisdictionis ecclesiasti-

cae sive interni sive extern fori, et ad hoc recurrentes ad forum saeculare

ejusque mandata procurantes, edentes, aut auxilium, consilium vel favorern

praestantes.

VII. Cogentes, sive directe sive indirecte, judices laicos ad trahendum

ad suum tribunal personas ecclesiasticas praeter canonicas dispositiones:

item edentes leges vel decreta contra libertatem aut jura Ecclesiae.

VIII. Recurrentes ad laicam potestatem ad impediendas Iitteras vel acta

quaelibet a Sede Apostolica, vel ab ejusdem legatis aut delegatis quibus-

cumque profecta eorumque promulgationemvel executionem directe vel

indirecte prohibentes, aut eorum causa sive ipsas partes, sive alios laedentes.

vel perterrefacientes.



538 Appendix.

iX. Omnes falsarios litterarum apostolicarum, etiam in forma brevis ac

supplicationum gratiam vel justitiam concernentium per Romanum Ponti-

ficem, vel S. R. E. vice-cancellarios seu gerentes vices eorum aut de mandato

ejusdem Romani Pontificis signatarum : necnon falso publicantes litteras

apostoHcas, etiam in forma brevis, et etiam falso signantes supplicationes

hujusmodi sub nomine Romani Pontificis, SRU vice-cancellarii aut gerentis

vices praedictorum.

X. Absolventes complicem in peccato turpi etiam in mortis articulo, si

alius sacerdos licet non adprobatus ad confessiones, sine gravi aliqua exori-

tura infamia et scandalo, possit excipere morientis confessionem.

XL Usurpantes aut sequestrantes jurisdictionem, bona, reditus ad per-

sonas ecclesiasticas ratione suarum Ecclesiarum aut beneficiorum perti-

nentes.

XII. Invadentes, destruentes, detinentes per se vel per alios civitates,

terras, loca aut jura ad Ecclesiam Romanam pertinentia ;vel usurpantes, per-

tuibantes, retinentes supremam jurisdictionem in eis;necnon ad singula

praedictaauxilium,

consilium,favorem

praebentes.

1

A quibus omnibus excommunicationibus hue usque rcc^nsitis absolu-

tionem Romano Pontifici pro tempore speciali modo reservatam esse et reser-

vari;et pro ea generalem concessionem absolvendi a casibus et censuris sive

excommunicationibus Romano Pontiftci reservatis nullo pacto sufficere decla

ramus, revocatis insuper earumdem respectu quibuscumque induhis concessis

sub quavis forma et quibusvis personis etiam regularibus cujuscumque

ordinis, congregationis. societatis et instituti, etiam speciali mentione dignis

et in quavis dignitate constitutis. Absolvere autem praesumentes sine debita

facultate, etiam quovis praetextu, excommunicationis vinculo Romano Ponti

fici reservatae innodatos se sciant, dummodo non agatur de mortis articulo, in

quo tamen firma sit quoad absolutos obligatio standi mandatis Ecclesiae, si

convaluerint.

1 To the above twelve cases Pius IX., in his C. Romanus Pontifex, Aug. 28, 1873, added a

thirteenth, which the following persons incur : i. Canonici ac dignitates cathedralium ecclesiarum

vacantium, qui ausi fuerint concedere et transferre ecclesiae vacantis curam. regimen et adminis-

trationem, sub quovis titulo, nomine, quaesito colore . in nominatum et praesentatum i

laica potestate ex S. Sedis concessione seu privilegio, vel, ubi consuetude viget, a capitularibus

ipsis electum ad eandem ecclesiam vacantem. 2 Nominati et praesentati vel ut supra electi, ad

tracantes ecclesias, qui earum curam, regimen et administrationem suscipere audent. ... 3.

15 omnes, qui praemissis paruerint, vel auxilium, consilium aut favorem praestiterint. cujus-

cuiique status, conditionis, praeeminentiae et dignitatis fuerint (supra, n. 287-294 and n. 637, ne e

33 ; Konings, n. 1717). A fourteenth, which was added by decision of ftie S. Poenit, Aug. 4, 1876,

is against the members, propagators, adherents, and favorers (in any manner) of the"

Societa Cat-

tolica Italiana per la rivendicazione dei diritti spettanti al popolo christiano ed in ispecie a popolo

romano" a society recently established in Italy for the purpose of giving the Roman people a

voice in the election of the Sovereign Pontiff, by means of popular suffrage (Nouv. Rev. Theol., p.

462 seq , livr. se., 1876). Hence, as we said (supra, n. 681), there are at present fourteen excommu

nications reserved, speciali modo, to the Roman Pontiff.



Appendix. 539

Excommunicationes Latae Sententiae Romano Pontifici (simpliciter)

Reservatae.

Excommunicationi latae sententiae Romano Pontifici reservatae subjacere

declaramus :

I. Docentes vel defendentes sive publice, sive privatim propositiones ab

ApostolicaSede damnatas sub excommunicationis poena latae sententiae ;

item docentes vel defendentes tamquam licitam praxim inquirendi a poeni-

tente nomen complicis prouti damnata est a Benedicto XIV. in Const.

Suprema, 7 Julii, 1744 ;Ubi primum, 2 Junii, 1746 ;

Ad eradicandum, 28 Sep-

ternbris, 1746.

II. Violentas manus, suadente diabolo, injicientes in clericos, velutriusque

sexus monachos, exceptis quoad reservationem casibus et personis, de quibus

jure vel privilegio permittitur, ut episcopus aut alius absolvat.

III. Duellum perpetrantes, aut simpliciter ad illud provocantes, vel ipsum

acceptantes, et quoslibet complices, vel qualemcumque operam aut favorem

praebentes, necnon de industria spectantes, illudque permittentes, vel quan

tum in illis est, non prohibentes, cujuscumque dignitatis sint, etiam regalis

vel imperialis.

IV. Nomen dantes sectae Massonicae, aut Carfamatiae, aut aliis ejusdem

generis sectis, qua contra Ecclesiam vel legitimas potesiates seu palam seu

clandestine machinantur, necnon iisdem sectis favorem qualemcumque

praestantes, earumve occultos coryphaeos ac duces non denunciantes, donee

denunciaverint.

V. Immunitatem asyli ecclesiastici violare jubentes, aut ausu temerario

violantes.

VI. Violantes clausuram monialium, cujuscumque generis aut conditionis,

sexus vel aetatis fuerint, in earum monasteria absque legitima licentia in-

grediendo ; pariterque eos introducentes vel admittentes; itemque moniales

ab ilia exeuntes extra casus ac formam a S. Pio V. in Constit. Decori prae-

scriptam.

VII. Mulieresviolantes

regulariumvirorum clausuram, et superiores

aliosve eas admittentes.

VIII. Reos simoniae realis in beneficiis quibuscumque, eorumque com

plices.

IX. Reos simoniae confidentialis in beneficiis quibuslibet, cujuscumque

sint dignitatis.

X. Reos simoniae realis ob ingressum in religionem.

XI. Omnes, qui quaestum facientes ex indulgentiis aliisque gratiis spiri-

tualibus, excommunicationis censura plectuntur Corstitutione S. Pii V.

Quam plenum, 2 Januarii, 1554-

XII. Colligentes eleemosynas majoris pretii pro missis, et ex iis lucrum



54Q Appendix.

captantes, faciendo eas celebrari in locis, ubi missarum stipendia minoris

pretii esse solent.

XIII. Omnes, qui excommunicatione mulctantur in Constitutionibus S.

Pii V., Admonet nos, quarto kalendas Aprilis, 1567; Innocentii IX., Quae ab

hac Sede, pridie nonas Novembris, 1591 ;dementis VIII., Ad Romani Pon-

tificiscti d/ii, 26 Junii, 1592; ct Alexandri VII.. Jntir ceteras, nono kalendas

Novembris, 1660, alienationem et infeudationem civitatum et locorum S. R E.

respicientibus.

XIV. Religiosos praesumentes clericis aut laicis extra casum necessitatis

sacramentum Extremae Unctionis aut Eucharisiiae per viaticum ministrare

absquc parochi licentia.

XV. Extrahentes absque legitima venia reliquias ex sacris coemet< riis

sive catacumbis urbis Romae ejusque territorii, eisque auxilium vel favorem

praebentcs.

XVI. Communicantes cum excommunicato nominatim a Papa in crimine

criminoso, ei scilicet impendendo auxilium vel favorem.

XVII. Cleiicos scienter et sponte communicantes in divinis cum per-

sonis a Romano Pontifice nominatim excommunicatis et ipsos in officiis

recipientes.1

Excommunicatfoncs Latae Sententiae Episcopis sive Ordinariis

Reservatae.

Excommunicationi latae sententiae episcopis sive ordinariis reservatae

subjacerc declaramus :

I. Clericos in sacris constitutes vel regulares aut moniales post votumsolemne castitatis matrimonium contrahere praesumentes ;

necnon omnes cum

aliqua ex praedictis personis matrimonium contrahere praesumentes.

II. Procurantes abortum, effectu sequuto.

III. Litteris apostolicis falsis scienter utentes, vel crimini ea in re co-

operantes.

Excommunicationes Latae Sententiae Nemini Reservatae.

Excommunicationi latae sententiae nemini reservatae subjacere decla

ramus :

1 To the above seventeen cases must he added three additional excommunications namely,

against, i, absolvere praesumentes sine dehita facultate. etiam quovis praetextu, excommunica-

tionis vinculo specialiter reservatae innodatos (supra, excomm. special moco R P. rwervatae, xii.,

A quibus . . .) 2. Kcclesiasticos et missionaries in Indiis orientalibus mercaturae operam

dantes (C. S. O., Dec. 4, 1879). 3. Against those who adhere to, i.e., formally approve internally

and externally, those crimes which are punished with the twelfth excommunication reserved

speciali nicdo, tc the Pope (Encycl. Pii PP. IX., Nov. i, 1870, ap. Konings, n. 1732). Altogether

therefore, there are now, as we have elsewhere (supra, n. 681) said, twenty excommunications

reserved simpliciter to the Holy See.



Appendix. 54 r

I. Mandantes sen cogentes tiadi ecclesiasticae sepulturae haeieticos noto-

rios aut nominatim excommunicates vel interdictos.

II Laedentes aut perterrefacientts inquisitores, denuntiantes, testes,

aliosve ministros S. Officii, ejusve sacri tribunalis scripturas diripientes,

aut comburentes, vel praedictis quibuslibet auxilium, consilium, lavurem

praestantes.

III. Alienantes et recipere pracsumentes bona ecclesiastica absque bene-

placito apostolico,ad formam

extravagantisAmbitiosae, De Reb. Ecc. non

alienandis.

IV. Negligentes sive culpabiliter omittentes denunciare infra mensem

confessarios sive sacerdotes, a quibus sollicitati fuerint ad turpia in quibus-

Ubet casibus expressis a Praedecess. Nostris Gregorio XV. Constit. Universi,

20 Augusti, 1622, et Benedicto XIV. Constit. Sacramentum p.enitentiac,i

Junii, 1741.

Praeter hos hactenus recensitos, eos quoque, quos sacrosanctum Con

cilium Tridentinum, sive reservata Summo Pontitici aut ordinariis abso-

lutione, sive absque ulla reservatione excommunicavit, nos pariter excom-

municatos csse declaramus; excepta anathematis poena in Decreto sess. iv.

De editione et usu Sacronim Librorum constituta, cui illos tantum subjacere

volumus, qui libros de rebus sacris tractantes sine ordinarii approbatione

itnprimunt, aut imprimi faciunt.

Suspensiones Latae Sententiae Summo Pontifici Reservatae.

I. Suspensionem ipso facto incurrunt a suorum beneficiorum perceptione

ad beneplacitum S. Sedis capitula et conventus ecclesiarum et monasteriorum

aliique omnes, qui ad illarum scu illorum regimen et administrationem

recipiunt episcopos aliosve praelatos de praedictis ecclesiis seu monasteriis

apud eamJem S. Sedem quovis modo provisos, antequam ipsi exhibuerint

litteias apostolicas de sua promotione.

II. Suspensionem per triennium a collatione ordinum ipso jure incurrunt

aliquem ordinantes absque titulo beneficii vel patrimonii cum pacto, ut ordi-

natus non petat ab ipsis alimenta.

III. Suspensionem per annum ab ordinum administratione ipso jure

incurrunt ordinantes alienum subditum etiam sub praetextu beneficii statim

conferendi, aut jam collati, scd minime sufficientis, absque ejus episcopi

litteris dimissorialibus, vel etiam subditum proprium, qui alibi tanto tempore

moratus s:

t, ut canonicum impedimentum contrahere ibi potuerit, absque

ordin;irii ejus loci litteris testimonialibus.

IV. Suspensionem per annum a collatione ordinum ipso jure iucurrit, qui

excento casu legitimi privilegii,ordinem sacrum contulerit

absquetitulo

benefi -ii vel patrimonii clerico in aliqua congregatione viventi. in quasolemnis

professio non emittitur, vel etiam religioso nondum professo.



54 2 Appendix,

V. Suspensionem perpetuam ab exercitio ordinum ipso jure ir.currunt

religiosi ejecti, extra religionem degentes.

VI. Suspensionem ab ordine suscepto ipso jure incurrunt, qui eumdemordinera recipere praesumpserunt ab excommunicate vel suspense, vel inter-

dicto nominatim denunciatis, aut ab haeretico vel schismatico notono : eumvero, qui buna fide a quopiam eorum est ordinatus, exercitium non habereordinis sic suscepti, donee di-pcnsetur. declaramus

VII. Clerici saecularcs exteri ultra quatuor menses in urhe commorantes,

ordinati ab alio quam ab ipso sue ordinario absque licentia Card. Urbis

Vicarii, vel absque praevio examine coram eodem peracto vel etiam a

proprio ordinario, posteaquam in praedicto examinerejecti fuerint

; necm.nclerici pertinentes ad aliquem e sex episcopatibus suburbicariis, si ordinenturextra suam dioecesim, dimissorialibus sui ordinarii ad alium directis quamad Card. Urbis Vicarium

;vel non praemissis ante ordinem sacrum sus-

cipiendum exercitiis spiritualibus per decem dies in domo urbana sacer-

dotum a missione nuncupatorum, Suspensionem ab ordinibus sic susceptis

ad beneplacitum S. Sedis ipso jure incurrunt, episcopi vero ordinantes ab. usu Pontificalium per annum.

Interdicta Latae Sententiae Reservata.

I. Interdictum Romano Pontifici special modo reservatum ipso jure incur

runt universitates, collegia et capitula, quocumque nomine nuncupentur, ab

ordinationibus seu mandatis ejusdem Romani Pontificis pro tempore existen-

tis ad universale futurum conciliumappellantia.

II. Scienter celebrantes vel celebrari facientes divina in locis ab ordinario,vel delegate judice, vel a jure interdictis, aut nominatim excommunicatos addivina officia, seu ecclesiastica sacramcnta, vel ecclesiasticam sepulturam acl-

mittentes, interdictum ab ingressu Ecclesiae ipso jure incurrunt, donee ad

arbitrium ejus, cujus sententiam contempserunt, competenter satisfecerint.

Denique quoscumque alios sacrosanctum Concilium Tridentinum suspenses aut interdictos ipso jure esse decrevit, nos pari modo suspension; vel in-

terdicto eosdem obnoxios esse volumus et declaramus.

Quae vero ccnsurae sive excommunicationis, sive suspensions, sive inter

dict nostrh aut praedecessorum nostrorum constitutionibus, aut sacris canoni-

bus praeter eas, quas recensuimus, latae sunt, atque hactenus in suo vigore

perstiterunt sive pro R. Pontificis electione, sive pro interno regimine

quorumcumque ordinum et institutorum regulariurn, necnon quorumcumquecollegiorum, congregationum, coetuum locorumque piorum cujuscumquenominis aut generis sint, eas omnes firmas esse, et in suo robore perma-nere volumus et declaramus.

Cetmim d^rpmirrnis ; n novis r-uibuscumque concessionibns ac privi-

legiis, quae ab Apostolica Sede concedi cuivis contigerit nullo modo ac



Appendix. 543

ratione intelligi unquam debere, aut posse comprehend} facultatem ab-

solvendi a casibus et censuris quibuslibet Romano Poniifici reseivatis, nisi

de iis formalis, explicita ac individuu mentio fact.i fuent : quae vero privilegia

aut facultates, sive a praedecessoribus nosiris, sive etiam a nobis cuilibet

coetui, ordini, congregation , societati et institute, etiam regulari cujusvis

speciei, etsi titulo peculiar praedito, atque etiarr. special mentione digno a

quovis unquam tempore hue usque concessae fuerint, ea omnia, casque

omnes nostmconstitutione

revocatas, suppressas,et abolitas esse

volumus,prout reapse revocamus, supprimimus et abolemus, minime rcfragantibus

aut o istantibus privilegiis quibuscumque, etiam specialibus comprehensis,

vjl non in corpore juris, aut apostolicis constitutionibus, et quavis confirma-

tione apostolica, vel immemorabili etiam omsuetudine, aut alia quacumque

rirmitate roboratis, quibuslibet etiam iormis ac tenoribus, et cum qui-

busvii derogatoriarum derogatoriis, aliisque efficacioribus et insolitis clau-

sulis, quibus omnibus, quatenus opus sit, derogare intendimus, et dero-

gamus.

Firmam tamen esse volumus a >solvendi facultatem a Tridentina Synodo

episcopis concessam, sess. xxiv., cap. vi., De J\\ /o>m., in quibuscumque

censuris Apostolicae Sedi hac nostra Constitutione reservatis, iis tantum

exceptis, quas eisdem Apostolicae Sedi speciali modo reservatas decla-

ravimus.

Decernentes has litteras, atque omnia et singula, quae in eis constituta ac

decreta sunt omnesque et singulas, quae in eisdem factae sunt ex anterioribus

constitutionibus praedecessorum nostrorum, atque etiam r.ostris, aut ex aliis

sacris canonibus quibuscumque, etiam Conciliorum Generalium, et ipsius

Tridentini mutationes, derogationes, suppressiones atque abrogationes ratas et

firmas, ac respective rata atque firma esse et fore, suosque plenarios et in-

tegros effectus obtinere debere, ac reapse obtinere; sicque et non aliter in

praemissis per quoscumque judices ordinaries, et delegates, etiam causarum

Palatii Apostolici auditores, ac S. R. E. cardinales, etiam de latere legates, ac

Apostolicae Sedis nuntios, ac quovis alios quacumque praeeminentia ac potes-

tate fungentes, et functuros, sublata eis, et eorum cuilibet quavis aliter judi-

candi et interpretandi facilitate et auctoritate, juclicari ac definiri debere; et

irritum atque inane esse ac fore quidquid super his a quoquam quavis auctori

tate, etiam praetextu cujuslibet privilegii, aut consuetudinis inductae vel

inducendae, quam abusum esse declaramus, scienter vel ignoranter contigerit

attentari.

Non obstantibus praemissis, aliisque quibuslibet ordinationibus, con

stitutionibus, privilegiis, etiam speciali et individua mentione dignis, necncn

consuetudinibus quibusvis, etiam immemorabilibus, ceterisque contrariis

quibuscumque.

Nulli ergo omnino hominum liceat hanc paginam nostrae constitutionis,

ordinationis, limitationis, suppressionis, derogationis, voluntatis infringere,



544 Appendix.

vel ei ausu temerario contraire. Si quis uutem hoc attentare praesumpserit,

indignationem Omnipotentis Dei et Beatorum .Petri et Pauli, apostolorum

ejus, se noverit incursurum.

Datum Romae apud S. Petrum anno incarnationis Dominicae millesimo-

octingentesimo sexagesimo nono, quarto idus Octobris, Pontificatus nostri

anno vigesimo quarto.

MAKIUS CARD. MATTEI, Pro-Datarius.

N. CARD. PARACCIAM CLARELLI.

Visa de Curia : DOMINICUS BRUTI.Loco

-j- Plumbi.J. CUGNONI.

II.

DECISIO S. POENITENTIARIAE CIRCA JEJUNIUM.

EMINENTISSIMK PRINCKPS : Quidam sacerdotes regnorum Belgii et Hol-

landiae, ad tranquillitatem conscientiae suae et ad certam fidelium directionem,

instanter petunt ab Eminentia Vestra solutionem sequentium dubiorum :

Gur}-, Scavini et alii referunt tanquam responsa S. Poenitdntiariae data die

16Jan., 1834 :

"

Posse personis quae sunt in potestate patrisfamilias, cui facta est legitima

facultas edi-ndi carnes, permitti uti cibis patrifamilias indultis, abjecta con-

ditione de non perniiscendis licitis atque interdictis epulis et de unica comes-

tione in die, iis qui jejunare tenentur."

Igitur quaeritur: i. An haec resolutio valeat ubique terrarum ? 2 Dumdicitur//? /.i posse, pctitur a quo ista permissio danda sit, et an sufficiat per-

missio data a simplici confessario?

Altera resolutio:"

Fideles qui ratione aetatis vi.l laboris jejunare non

tenentur, licite posse in Quadragesima, dum indultum concessum est, omni

bus diebus indulto coiuprehensis, vesci carnibus aut lacticiniis per idem

inuultum permissis, quoties per diem edunt."

Dubitatur igitur an haec resolutio valeat in dioecesi cujus episcopus auc-

toritate apostolica concedit fidelibus ut, feria 2a, 3a, sa temporis Quadragesi-

mae, possint semel in die vesci carnibus et ovis, iis vcro qui ratione aetatis vel

laboris jejunare non tenentur. permittit ut ovis saepius in die utantur.

Quaeritur itaque: i. An non obtantibus mcmorata phrasi ovis saepius in die

utantur, et tenore concessionis, possint ii, qui ratione aetatis vel laboris

jejunare non tenentur, vi dictac resolutions vesci carnibus quoties per diem

edunt? 2. An iis, qui jejunare non tenentur ratione aetatis vel laboris,

aequiparandi sint qui ratione intirmae valetudinis a jejunio excusantur, adeout istis quoque pluries in die vesci carnibus liceat?



Appendix. 545

S. Poenitentiaria, mature consideratis propositis dubiis, dilecto in Christo

oratori in primis respondet transmittendo declarationem ab ipsa S. Poeniten

tiaria alias datam, scilicet :

"

Ratio permissionis de qua in resolutione data a

S. Poenitentiaria, 16 Januarii, 1834, non est indultum patrifamilias concessum,

sed impotentia, in qua versantur filiitamilias, observandi praeceptum."

Deinde ad duo priora dubia respondet : Quoad primum, affinnative.

Quoad secundum, sufficere ptrmissioncmfattain a simplici confessano.

Ad duo vero posteriora dubia respondet:

Quoad primum, negative ; quod

secundum, non aequiparari.

Datum Romae in S. Poenitentiaria, die 27 Mali, 1863.

A.-M. CARD. CAGIANO, M. P.

III.

INSTRUCTIO DE SCHOLIS PUBLICIS AD RMOS EPISCO-

POS IN FOEDERAT1S STATIBUS AMERICAE SEP-

TEMTRIONALIS.

Pluries S. Congregatio de Propaganda Fide certior facta est in Foederatis

Statibus Americae Septemtrionalis Catholicae juventuti e sic dictis scholis

publicis gravissima damna imminere. Tristis quocirca hie nuntius effecit, ut

praedicta S. Congregatio amplissimis istius ditionis episcopis nonnullas

quaestiones proponendas censuerit, quae partim ad causas cur fideles sinant

liberos suos scholas acatholicas frequentaie, partim ad media quibus facilius

juvenes e scholis hujusmodi arceri possint, spectabant. Porro responsiones a

laudatis episcopis exaratae ad Supremam Congregationem Universalis Inquisi-

tionis pro natura argument delatae sunt, et negotio diligenter explorato

Feria IV., die 30 Junii, 1875, per instructionem sequentem absolvendum ab

Emis Patribus judicatum est, quam exinde SS. Dnus. Noster Feria IV., die 2,1

Novembris praedicti anni adprobare ac confirmare dignatus est.

Porro in deliberatione imprimis cadere debebat ipsa juventulis instituen-

dae ratio scholis hujusmodi propiia atque pectiliaris. Ea vero S. Congrega

tion visa est etiam ex se periculi plena, ac perquam adversa rei catholicae.

Alumni enim talium scholarum cum propria earumdem ratio omnem excludat

doctrinam religionis. neque rudimenta fidei addiscent, neque Ecclesiae instru-

tntur praeceptis, atque adeo carebunt cognitione homini quam maxime neces-

saria, sine qua Christiane non vivitur. Enimvero in ejusmodi scholis juvenes

educantur jam inde a prima pueritia, ac propemodum a teneris unguicuHs:

qua aetate, ut constat, virtutis ac vitii semina tenaciter haerent. Aetas igitur

tarn flexibilis si absque religione adolescat, sane ingens malum est. Porro



546 Appendix.

autem in praedictis scholis, utpotc sejunctis ab Ecclesiae auctoritate, iudis-

criminatim ex omni secta magistri adhibentur, et certeroquin ne ptrniciem

afieraut juventuti nulla lege cautum est, ita ut liberum sit errores et vitiorum

semina aneris mentibus inlundere. Certa item corruptela insuper ex hoc im-

pendet, quod in iisdem scholis aut saltern pluribus earuni, utriusque sexus

adolescentes, ct audiendis lectionibus in idem conclave congregamui. et

sedere in eodem scamno, masculi juxta feminas jubentur : quae omnia efficiunt

ut juventus misere exponatur damno circa fidem, ac mores periclitentur. Hoc

autem periculum perversionis nisi e proximo remotum fiat, tales scholae tuta

conscientia frequentari nequeunt. Id vel ipsa clamat lex naturalis et divina.

Id porro Claris verbis Summus Pontifex edixit, Friburgensi quondam Archi-

episcopo die 14 Julii, 1864, ita scribens : Certe quidtm ubi in quibuscumque locis

regionibusqueperniciosissimum hujusmodi vel susciperetur, vel ad exitum perdute-

retur consilium expellendi a scholis Ecclesiae auctoritatem, et juventus misere expo-

neretur .damno circa fidem, tune Ecclesia non solum dcberet instantissimo studio

omnia conari, nullisque curis parcere, ut eadem juventus neccssatiam Christianam

instituiionem, et educalionem habeat, ve: um eliarn cogeretur omnes fideles inonere,

eisque declarare ejusmodi sekolas Ecclesiae Catholicae adversas hand posse in consci

entia f.equentari. Et haec quidem utpote fundata jure naturali ac divino,

generale quoddam enunciant principium, vimque universalem habent, et ad

eas omnes pertinent regiones, ubi perniciosissima hujusmodi juventutis insti-

tuendae ratio infeliciter invecta fuerit. Oportet igitur ut praesules amplis-

simi, quacumque posfint ope atque opera, commissum sibi gregem arceant ab

omni contagione scholarum publicarum. Est autem ad hoc, omnium con-

sensu, nil tarn necessarium, quam ut Catholici ubique locorum proprias sibi

scholas habeant, casque publicis scholis haud inferiores. Scholis ergo Catho-

licis, sive condendis, ubi defuerint, sive ampliricandis, et perfectius instruendis

parandisque, ut institutione ac disciplina scholas publicas adaequeut, omni

cura prospiciendum est. Ac tam sancto quidem exequendo consilio, tamque

necessario haud inutiliter adhibebuntur, si episcopis visum fuerit, e congrega-

tionibus religiosis sodales sive viri sive muliercs; sumptusque tanto operi

necessarli ut eo libentius atque abundantius suppeditentur a fidelibus, oppor

tune oblataoccasione,

sive concionibus, siveprivatis colloquiis,

serio necesse

est, ut ipsi commonefiant sese officio suo graviter defecturos, nisi omni qua

possunt cura, impensaque, scholis Catholicis provideant. De quo potissimum

monendi erunt quotquot inter Catholicos ceteris praestant divitiis ac auctori

tate apud populum, quique comitiis ferendis legibus sunt adscripti. Et vero

in istis regionibus nulla obstat lex civilis quominus Catholici, ut ipsis visum

fuerit, propriis scholis prolem suam ad omnem scientiam ac pietatem eru-

diant. Est enjo in potestate positum ipsius populi Catholici ut feliciter

avertatur clades, quam scholarum illic publicarum institutum rei Catholicae

minatur. Religio autem ac pietas ne a scholis vestris expellantur, id omnes

persuadeant sibi plurimum interesse, non singulorum tantum civjum ac



Appendix. 547

familiarum, verum etiam ipsius floremissimae Americanae nationis, quaetantam de se spem Ecclesiae dedit.

Ceterum S. Congregatio non ignorat taliura interdum rerum esse adjuncta,ut paientes Catholic prolem suam scholis publicis committere in conscientia

possint. Id autem non poterunt. nisi ad sic agendum sufficientem causamhabeant

;ac talis causa sufficicns in casu aliquo particular utrum adsit necne,

id conscicntiae ac judicio Episcoporum relinquendum erit;

et juxta relata

tune ea plerumque aderit, quando vel nulla praesto est schola Catholica, vel

quae suppetit parum est idonea erudiendis convenienter condition suae, con-

gruenterque adolescentibus.

Quae autem ut scholae publicae in conscientia adiri possint, periculum

perversionis cum propria ipaarum ratione plus minusve nunquam non con

junctum, opportunis remediis cautionibusque, fieri debet ex proximo remo-

tum. Est ergo imprimis videndum utrumne in schola, de qua adeunda

quaeritur, perversionis periculum sit ejusmodi, quod fieri remotum plane

nequeat: velut quoties ibi aut docentur quaedam, aut aguntur, Catholicae doc-

trinae bonisve moribus contraria, quaeque citra animae detrimentum, nequeaudiri possunt, nedum pcragi. Enimvero tale periculum, ut per se patet, om-nino vitandum est quocumque damno etiam vitae.

Debet porro juventus ut committi scholis publicis in conscientia possit,

necessariam Christianam institutionem et educationem saltern extra scholae

tempus rite ac diligentere accipere. Quare parochi et missionarii, memores

eorum, quae providentissime hac de re Concilium Baltimorense constituit,

catechesibus diligenter dent

operam, iisque explicandis praecipue incumbantveritatibus fidei ac morum, quae magis ab incredulis et heterodoxis impetuntur

; totque periculis expositam juventutem impensa cura, qua frequenti sacra-

mentorum usu, qua pietate in Beatam Virginem studeant communire, et ad

religionem firmiter tenendam etiam atque etiam excitent. Ipsi vero parentes,

quive eorum loco sunt, liberis suis sollicite invigilent, ac vel ipsi per se, vel, si

minus idonei ipsi sint, per alios, de lectionibus auditis eos interrogent, libros

iisdem traditos recognoscant, et si quid noxium ibi deprehenderint, antidota

praebeant, eosque a familiaritate et consortio condiscipulorum, a quibus fidei

vel morum periculum imminere possit, sou quorum corrupti mores fuerint,

omnino arceant atque prohibcant.

Hanc autem necessarian Christianam institutionem et educationem liberis

suis impeitire quotquot parentes negligunt : aut qui frequentare illos sinunt

tales scholas, in quibus animarum ruina evitari non potest : aut tandem qui,

licet schola Catholica in eodem loco idonea sit, apteque instructa et parata,

seu quamvis facultatem habeant in alia regione prolem Catholice educandi,

nihilominus committunt earn scholis publicis, sine sufficiente causa ac sine

necessariis cautionibus, quibus periculum perversionis e proximo remotumfiat: eos, si contumaces fuerint, absolvi non posse in Sacramento

p<enitentiae

*x doctrina morali Catholica manifestuin est.



548 Appendix.

IV.

THE SYMBOL OF POPE PIUS IV., AS AMENDED

BY POPE PIUS IX.

(y) n. 326, 664.

DECRETUM.

Ouod a priscis Ecclesiae temporibus semper fuit in more, ut christifideli

bus~certa proponeretur ac determinata formula, qua fidem profiterentur, atque

invalescentes cujusque aetatis haereses solemniter detestarentur, idipsum,

sacrosancta Tridentina Synodo feliciter absoluta. sapienter praestitit Summus

Pontifex Pius IV., qui Tridentinorum Patrum decreta incunctanter exequi

properans, edita Idibus Novembris, 1564, Constitutione Injunctam AV>iJ, for-

mam concinnavit professionisfidei recitandam ab iis, qui cathedralibus et

superioribus Ecclesiis praeficicndi forent, quive illarum dignitates, canonica-

tus, aliaqiie beneficia ecclesiastica quaecumque curam animarum habentia

essent conseculuri, et ab omnibus aliis, ad quos ex decretis ipsius concilii

special : necnon ab iis, quos de monasleriis, convenlibus, domibus, et aliis

quibuscumque locis regularium quorumcumque ordinum, eliam militarium,

quocumque nomine vcl titulo provided contingeret. Quod et alia Conslilu-

tione edita eodem die et anno incipiente In sacrosancto, salubriter praeterea

extendit ad omnes doctorcs, magistros, regentes, vel alios cujuscumque arlis

et facultatis professores, sive clericossive

laicos,

vel

cujusvis

ordinis regu

laris, quibuslibetin locis publice vel privatim quoquomodo profilemes, seu

lecliones aliquas habenies vel exercentes, ac tandem ad ipsos hujusmodi

gradibus decorandos.

jam vero, cum postmodum coadunatum fuerit sacrosanctum Concilium

Vaticanum, e t anle ejus suspensionem per Lileras Aposlolicas Posiquam /?,.-

Munete diei 20 Oclobris, 1870, indictam, binae ab eodem solemniter promul

gate sint dogmaticae Conslitutipnes, prima scilicet de Fide Catholica, quae

incipit

Dei Filifs, et altera de Ecclesia Christi, quae incipit Pastor actcrnus,

non solum opportunum, sed etiam necessarium dijudicatum est, ut in fidei

professione dogmaticis quoque praememorati Vatican Concilii definitionibus,

prout corde, ila et ore publica solemnisque fieri deberet adhaesio. Quaprop-

U r Sanclissimus D. N. Pius Papa IX., exquisite ea desuper re voto specialis

CongregationisEmorum S. R. E. Patrum Cardinalium. statuit, praecepit,

atque mandavit, ceu per praesens decretum praecipit,ac mandat, ut in praeci-

tata Piana formula professionisfidei, post verba

"

praecipue a sacrosancta T

dentina Synodo"dicalur

"

et ab Occumenico Concilia Valicano tradita, defimla ac

declarata, praeserthnde Romani Pontificis Pnmaiu et InfalUbili Mngisteno

"

utque in posterut-xfidei professio

ab omnibus, qui earn emittere tenenlur. sic et



Appendix.

non aliter eiuittatur, sub coinminationibus ac poen^s a Concilio Tridentino et

a supradictis Constitutionibus S. M. Pii IV. statutis. Id igitur ubique, et ab

tmnibus, ad quos spectat, diligenter ac fideliter observetur, non obstanti-

bus, etc.

Datum Romae e Secretaria S. Congregationis Concilii die 20 Januarii,

1877-

P. CARD. CATEWNI, Praefectus.

].ARCHIEPISCOPUS

ANCYRANUS, Secretarius.

THE EMENDED PARAGRAPH.

The paragraph in the Creed of Pope Pius IV., amended by the above

decree so as to include a profession of faith in the Dogmatic Constitutions

of the Council of the Vatican, especially as regarde the Primacy and Infalli

bility,therefore

runs as follows:

Caetera item omnia a sacris canonibus et Oecumenicis Conciliis, ac prae-

cipue a sacrosancta Tridentina Synodo, et ab Oecumenico Concilio Vaticano

tiaatita, definita ac dechrata, ptaesertim de Romani Pontificis Primatu et Infalli-

bili Magisterio, indubitanter recipio atque profiteer ; simulque contraria omnia,

atque haereses quascumque ab Ecclesia damnatas et rejectas et anathematizatas

ego pariter damno, rejicio, et anathematize. Hanc veram Catholicam Fidem,

extra quam nemo salvus esse potest, quam in praesenti sponte profiteer et

veraciter teneo, eamdem integram et immaculatam usque ad extremum vitae

spiritum, constantissime, Deo adjuvante, retinere et confiteri, atque a meis

subditis seu illis, quorum cura ad me in munere meo spectabit, teneri et

doceri et praedicari, quantum in me erit, curaturum, ego, idem N. sponieoroveo ac juro. Sic me Deus adjuvet, et haec Sancta Dei Evangelia.



550 Appendix,.

V.

A SYNOPSIS

OF THE RECENT " INSTRUCTIO"

OF THE HOLY SEE " DE TITULO ORDINATIONIS,*

ISSUED BY THE PROPAGANDA, APRIL 2?, 1871, FOR MISSIONARY COUNTRIES.

1."

Porro geminus distinguitur titulus : ecclesiasticus scil. et patrimonialis.

Hie postremus obtinet, cum ordinandus talibus bonis certis, stabilibus ac

frugiferis, aliunde quam ab Ecclesia provenientibus, est instructus, quae ad

congruam ejus sustentationem sufficere episcopi judicio censeantur. Eccle

siasticus veto titulus in beneficialem subdividitur ac partpertatis, quibus aliae

quaedam veluti subsidiariae atque extraordinariae species adjiciendae sunt,

tituli nempe mensae communis, atque servitii Ecdesiae, missionis, sufficie.ntiacet

collegii."

]

Now, the titles beneficii, servitii Ecclesiae, sufficientiae, and collegiiAo

not exist with us. The titulus patrimonii may be, but is rarely, made use of in

the United States.2 We shall therefore pass over what the Instructio says in

regard to these titles, and subjoin merelywhat it teaches

concerningthe

tituli paupertatis ,mensae communis, and missionis.

2."

i. Paupertatis vero titulus," says the Instruction,"

in religiosa pro-

fessione est positus, vi cujus qui solemnia vota in probata religione emi-

serunt, vel ex reditibus bonorum, si quae ipsamet religio possideat, vel ex piis

fidelium largitionibus omnia communia habent quorum ad vitam alendam

indigent. 2. Quern vero vocant mensae communis titulum, eos clericos

attingit, qui religiosorum more in communi vitae disciplina degentes, aut

nulla nuncupant vota, aut simplicia tantum, proindeque e domo religiosa

exire aut dimitti, atque ad saeculum redire permittuntur. Neque enim ad eos

pertinet titulus paupertatis. Verum ex hisce clericis ii duntaxat communis

mensae titulo promoveri ad sacros ordines possunt, quorum Congregationes

aut Instituta peculiari ad id privilegio ab Apostolica Sede aucta fuerint."*

3."

3. Titulus missionis, de quo potissimum heic sermo est, adhiberi con-

suevit pro iis, qui Apostolicarum Missionum servitio sese devovent, in locis

in quibus ea est rerum conditio, ut commune Ecclesiae jus circa ea, quae ad

praerequisitum pro sacra ordinatione titulum snectant, servari adamussim

nequeant."4 The Instructio then states that ordinaries cannot ordain anyone

ru6 titulo missionis except by special indult from the Holy See. The Holy

See, on January 24, 1868, granted this mdult to all the bishops of the United

States for ten years.8 The indult is now granted only for five years.

4. The Instructio having explained that those who are ordained ad titulum

vtissionis must take the missionary oath, and cannot become religious without

Instr. cit., n. 2.a C. PI. Bait. II., n. 323 ;

cf. Instr. cit., n. 14.

* Instr. cit., n. 4.4Ib., n. 6

;cf. Konings, n. 1522. N. 7.

C. PI. Halt. II., n. 323, not. i; ib., p. cxlvii.





552 Appendix.

3/"

Ad omnes hujusmodi opiniones e medio tollendas sat est, ea quae Sixtus

V. constituit, sedulo inspicere ; aperte enim in 8 Constitutionis pracktae

enunciatur, a die publicationis ejusdem Constitutionis Episcopos ad SS.

Apostolorum cineres visitandos omnino teneri." Igitur, praedicta annorum

ipatia omnibus incipiunt currere a die, quo bulla Sixti V. edita fuit, hoc est,

a die 20 Decembris, 1585." ia

4. The Instruclio^ having explained that the foregoing applies also to

bishops of newly created dioceses,14continues :

" Cum quispiam ad sedem

episcopalem, sive ex veteribus, sive ex novis (sedibus episcopalibus) evehi-

tur, diem quo lex Sixti V. prodiit, prae oculis habeat;et si, praefiniti temporis

inde incipiens computationem, noverit ejus praedecessorem vertente triennio,

quadriennio, etc., oneri SS. Liminum visitationis haud fecisse satis, sciat sead

earn absolvendam adstringi. Econtra si quis dioeceseos curam assumpserit

paulo ante quam triennium, etc., sub antecessore incoeptum ad exitum per-

veniret, cum temporis defectu nondum in promptu possit habere quae ad

statum propriae ecclesiae referendum requiruntur, succurrit remedium in\

plorandae prorogationis quaehisce

praesertimin

adjunctis

a S. Sede facile

impertitur."

16

5. The Instructio next declares that at present, owing to the extraordinary

facilities and speed of travelling, legitimate causes excusing bishops from per

sonally making the visit ad SS. Limina can occur but rarely ; that, conse

quently, the Holy See desires that they should make the visit personally,

not merely by proxy.18

11 The schema of the Council of the Vatican"

de Episcopis"

(cap. iv.) proposed that these

three, four, etc., years should no longer be computed from December 20, 1585, but from the day

M which the decree of the Vatican Council on this head would be promulgated (Martin Doc.,

p. trf).

11Instr. cit., a. 5, 6. "Ib.,n. 7, 8. Instr. cit., B. 9, 10. Fb. n. 11-15.



Appendix. 553

VII.

DE EPISCOPIS IN HIBERNIA SELIGENDIS.

I.

DECRETUM

SACRAE CONGREGATIONS GENERALIS DE PROPAGANDA FIDE, HABITAE DIE PRIMA

JUNII ANNO 1829, DE EPISCOPIS IN HIBERNIA SELIGENDIS.

(Supra, n. 345, 349, 351.)

Cum ad gravissimum Electionis Hiberniae Episcoporum negotium rite sancte-

que absolvendum, certam aliquam methodum ubique in eo regno servandam

statuere in primis opportunum esse Sacra Congregatio intellexerit, qua fieret,

ut Sedes Apostolica exploratam notitiam habere possit meritorum Sacerdotum

pro quibus commendationes afferuntur, ut ad aliquem Hiberniae Episcopatum

eligantur, eadem Sacra Congregatic, postquam diu multumque de ea re defini.

enda cogitavit, in generali tandem conventu die prima Junii anno 1829, refer,

ente Eminentissimo et Reverendissimo D. D. Mauro S. R. E. Cardinal Cappel-

lari, Sacrae Congregationis Praefecto, censuit ac decrevit, methodum in toto

regno Hiberniae super ea re servandam in posterum, esse debere earn quae hie

describitur.

Sede itaque Episcopali, sive per antistitis obitum, translationem, aliamve ob

causam in posterum vacante, Vicarius, juxta formam a sacris canonibus prae-

scriptam, constituatur, qui dioecesi viduatae, durante vacatione, praesit. Met-

ropolitanus Provinciae, ubi vocatio contigerit, simul atque de vacatione, et

Vicarii electione certior factus fuerit. literis mandatoriis Vicario edicat, ut in

diem vigesimum a dato edicto, in unum convocet omnes, ad quos pertinebit

Summo Pontifici commendare tres dignos ecclesiastici ordinis viros, quorumunus a Summo Pontifice Dioecesi vacant praeficiatur. Qui sint ii qui convo-

cari debent, qua in forma convocandi sint, habetur ex sequent expositione.

Qui in Hibernia nuncupantur Parochi, scilicet clerici ad ordinem Sacerdotalem

evecti, censurarum immunes, quiparochiae.

seuparochiarum unitarum,

actual

ac pacifica possessione gaudeant, ad comitia convocandi sunt. Ubi vero adest

capitulum, convocabuntur cum Parochis etiam Canonici. Vicarius, edicto

Metropolitan accepto, intra octo dies singulos presbyteros supra designates,

litteris scriptis admonebit ut loco quodam opportune, in eadem monitior.e nom-

inatim exprimendo adsint die in edicto Metropolitan; statuto, ad tractandum de

negotio ibidem descripto. Metropolitanus ipse, vel unus de Suffraganeis ejus

episcopis ab ipso delegatus, comitiis praesidebit, et nulla prcrsus. et invalida

habenda sunt ibidem acta, et slatuta, non servata forma supra definita, sive in

convocando sive in moderando conventu. Parochis ceterbque de quibus supra,

die et loco statutis, mane in unum congregatis, Missa solenmis de Spiritu Sancto



554 Appendix.

celebretur : Missaque finita, Praeses super sedile in medio ecclesiae ascendet,

omnibusque, quorum nihil interest, exire jussis, foribusque ecclesiae clausis,

Vicarius catalogum nominum omnium Parochorum et Canonicorum, si adsit ibi

capitulum, dioecesis vacantis Praesidi tradet, qui eorumdem nomina, clara ac

distincta voce, a Secretario suo recitari mandabit, et unicuique eorum, postquam

nomini responderit, sedem propriam assignabit. Si unus aut plures Parochi

absint, praeses a Vicario probationem exquiret, absentibus sine fraude edictum

fuisse, et tali probatione admissa, absentia cujusvis numeri, modo quarta pars

totius Parochorum numeri adsit, nihil obstabit, quominus rata et valida sint,

quae in comitiis gerantur. Idem servandum erit circa Canonicorum numerum,

in diocesi in qua Capitulum adest. Parochis ac Canonicis, qui Vicarii moni-

tioni, sive propter adversam valetudinem, aliamve ob causam parere non vale-

ant, liberum erit, suffragia sua propria ipsorum manu scripta, involucro sigillato

inclusa, et extrinsecus ad Praesidem directa, cuivis alii Parocho vel Canonico

ejusdem Dioecesis confidere; et suffragio sic habito, et probato, eadem inerit

vis, ac si Parochus aut Canonicus ipse praesens adesset; modo literae certifica-

toriae de adversa ejus valetudine, a duobus artis medicinae peritis subscr iptae,

ad Praesidem transmittantur. Insuper parochus iste vel Canonicus priusquu.m

suffragium, modo supra descripto ferat, eamdem declarationem emittet, quam

ceteri Parochi ac Canonici inter comitia emittere coram praeside debebunt;

ejusque declarationis coram duobus Parochis vel Canonicis emissae probatio, in

medium erit proferenda coram Praeside, antequam suffragium admittatur.

Comitiis ita compositis, ac Praeside tractanda proponenteduo Scrutatores juxta

consuetas canonum formas, eligantur. Dein Suffragatores tactis simul manu

pectoribus, coram Deo pro se quisque affirment, se neque gratia, neque favore

inductos ei suffragaturos, quem dignum judicent, qui Dioecesi vacanti praefici-

atur. Postea suffragio in urnam immisso. singuli ad propriam sedem recedent.

His peractis, clara altaque voce a Scrutatoribus ad Praesidem, et a Praeside

ad conventum, renuntianda sunt nomina trium eorum Sacerdotum, in quos

major Suffragiorum numerus convenerit. Tune Praeses, narrationem authen-

ticam in scriptis redactam, parari coram comitiis, ejusdemque duo exemplaria a

se ipso et secretario atque scrutatoribus subsignanda, exscribi curabit. Ex istis

exemplaribus alterum Vicario tradendum, qui idem ad Sedem Apostolicam

transmittat; alterum vero ad Metropolitanum, cujus munus erit idem ad Suffra-

ganeos suos Episcopos in unum congregates referre. Quaecumque jura, privi-

legia, et munera supra recensentur tanquam Praesidi conventus propria,

eadem, Sede Metropolitana vacante, Seniori Provinciae Suffraganeo communi-

cari volumus.

Episcopis Provinciae, Praeside Metropolitano, aut ipsius defectu Seniore

Provinciae Suffraganeo in unum congregatis, et narratione authentica supra

memora^ coram ipsis prolata, de eadem coram Deo judicium sententiamque

ferent.Praeses Episcoporum Suffraganeorum sententiam de meritis trium

Sacerdotum, qui sedi Apostolicae commendantur, literis consignatam, unius-



Appendix. 555

cujusque Episcopiet Praesidis manu subscriptam, sigilloque munitam, ad Sedem

Apostolicam transmittet. Semel peracta commendatione, si Episcopi judica

verint tres illos commendatos minus dignos esse, quorum unus ad Episcopatum

promoveatur, tune quin detur novae commendationi locus, Summus Pontifex

pro sua sapientia, viduatae ecclesiae providebit.

Si agatur de Episcopo Coadjutore, cum jure successionis cuivis Episcopo as-

signando, eadem, quae, sede vacante, commendandi forma servanda est, cauto

tamen varia pnvilegia, jura et munera Metropolitano, aut Seniori Episcopi

Suffraganeo jam attributa, ad Archiepiscopum, aut Episcopum cui coadjutor

assignandus est, unice pertinere, illaeso tamen servato jure Metropolitani,

quando Suffraganei ejus Episcopi ad ferendum suffragium convenerint. Tan

dem quicumque Sedis Apostolicae approbationi commendentur, cives sint indi-

genae Hiberniae Serenissimo Imperii Britannici Regi fidelitate incorrupta

obstricti, morum integritate, pietate, doctrina, ceterisque quae Episcopum

decent, dotibus insigniti.

Haec sunt, quae in commendandis Sedi Apostolicae Sacerdotibus pro episco-

porum Hiberniae electione, Sacra Congregatio servanda praescripsit. Ea vero

decernens, significari omnibus voluit, in documentis de hac re pertractantibus,

ad Sanctam Sedem transmittendis, nihil inveniri debere, quod electionem, pos-

tulationem, nominationem innuat, sed simplicem commendationem : memorata

praeterea documenta esse debere jussit, in forma supplicis libelli ita concepti,

ut inde pateat nullam in Sanctam Sedem inferri obligationem eligendi unum ex

commendatis.

Declaravit denique Sacra Congregatio. salvam semper atque illaesam manere

debere, Sedis Apostolicae libertatem in eligendis Episcopis, ita ut commendationes, lumen tantum, et cognitionem Sacrae Congregationi, nunquam tamen

obligationem sint allaturae.

Datum Romae ex Aedibus die. Sac. Congregationis die 17 Octobris, 1829.

Gratis sine ulla omnino solutione quocumque titulo.

D. M. CARD. CAPPELLARI,

Praefectus.

C. CASTRACANE, Secretarius.

II.

DE EPISCOPIS IN HIBERNIA SELIGENDIS.

(Supra, n. 351.)

ILLUSTRISSIME AC REVERENDISSIME DOMIXE

Initum a Sacra Congregatione consilium ut certam methodum in regn Hi

berniae pervandam decerneret circa sacerdotes commendandos Apostolicae Sedi

quando agitur de episcoporum electione in eo totum versatum est ut memorata



556 Appendix.

methodo accurate servata Apostolica Secies exploratam notitiam habere possit

meritorum sacerdotum pro quibus commendationes afferuntur. Quare Sacra

Congregatio in decreto quod die prima Junii anno 1829 ea de re factum fuerat

ac die 17 Octobris ejusdem anni promulgatum est, declaravit mentem suam esse

ut commendationes illae lumen tantum ac cognitionem sibi compararent circa

eos inter quos Apostolica Sedes episcopos est electura. Voluit quidem diocesa-

num clerum consuli atque ejusdem opinionem circa sacerdotes commendandos

per secreta suffragia requiri. Id autem ea tantum de causa factum est, ut

sanctae Sedi constaret quinam praecipue sacerdotes aestimationem obtineant

cleri dioecesani, et tale testimonium consequantur ex quo intelligi posset eos

apud diocesanum clerum ad episcopatum consequendum idoneos censeri. Hoc

vero unico scrutinio fieri posse manifestum est, et revera decreti superius ine-

morati contextus hie est, ut in uno tantum scrutinio res peragatur atque ex eo

scrutinio constet quinam sint tres sacerdoles in quos major suffragiorum numerus

convenerit.

Ad Sacrae Congregationis notitiam nuper pervenit in aliquibus Hiberniae

dioecesibus hoc obtinuisse ut in conventibus qui habentur a clero diocesano adsacerdotes sanctae Sedi commendandos ex quibus episcopus aliquis eligatur non

unum sed tria fiant : intelligens Sacra Congregatio hinc evenire posse ut non

tres praestantiores ex clero, sed unus revera commendetur atque ei duo alii

veluti ad formam tantum adjungantur meritis omnino inferiores; cupiens prae-

terea eadem Sacra Congregatio ubique in Hibernia eamdem methodum circa

ejusmodi commendationes servari scribendum judicavit Amplitudini Tuae hanc

epistolam caeteris Archiepiscopis communicandam ut in dioecesibus omnibus

Hiberniae constet unicum scrutinium in conventibus cleri

peragendumesse ad

tres sacerdotes sanctae Sedi commendandos antequam ipsa deveniat ad episcopi

alicujus Hiberniae dioecesis electionem, et hunc verum decreti diei I Junii 1829

sensum esse. Precor Deum interea ut amplitudinem Tuam diu sospitem ac

felicem servet.

Romae ex aed. S. C. de Prop. Fide, die 25 Aprilis, 1835,

Amplitudinis tuae

Ad Officia Paratissimus,

J. CH. CARD. FRANSONIUS, Praef.

A. MAIUS, Secretariats.

R. P. D. DANIELI MURRAY,

Archiepiscopo Dublinensi,

Dublinum.

P.S. In Decreto recentiori S. Congregationis de Prop. Fide statutum est ut conventus

Episcoporum provinciae qui sententiam dicere debent de meritis trium sacerdotum a clero

selectorum teneatur decem diebus post conventum cleri ipsius.



Appendix. 557

VIII.INSTRUCTIO

S. CONGREGATIONS DE PROPAGANDA FIDE PRO ANGLIA, CIRCA

COMMENDANDOS AD EPISCOPATUM.

(Supra, n. 345, 349-)

21 Aprilis 1852.

Ut Ecclesiae noviterper Smum D. N. in Angliae regno constitutae magis in

4ies floreant, iisdemqueAntistites

jugiter praeficiantur qui

vitae

probitate,

doctrina, zelo, ac prudentia spectatissimi existant; peropportunum visum est,

si ab ecclesiasticis viris, qui sacris obeundis muneribus inter alios praestiterunt,

potissimum vero testimonio Episcoporum pro tempore existentium, nonnulli

Apostolicae Sedi commendentur, ex quibus eadem ad episcopalem gradum,

quem magis idoneum censuerit eligere valeat.

Commendatio vero hujusmodi tanti momenti esse noscitur, ut inspectis ani-

madversionibus ab Emo ac Rmo D. Nicolao S. R. E. Cardinali Wiseman ac

RR. PP. DD. Episcopis Angliae redditis, ac re accurate perpensa, S. Congre-

gatio de Propaganda Fide, in generali conventu habito die 5. Aprilis 1852.

peculiar instructione methodum proponendam censuerit.

Cum Episcopus est constituendus, capitulariter dignitarius et canonici illius

Ecclesiae conveniant, precibus de more praemissis ac praestito jurarnento de

secreto servando, tribus vicibus suffragia ferantur circa personas Sanctae Sedi

veluti digniores commendandas. Si in al-iqua ex tribus vicibus in favorem

nullius adsint suffragia tot numero quae excedant majorem partem vocum, actus

nullius momenti existat, atque iterum suffragia ferantur.

Actus capitularis, rite descriptus atque obsignatus, transmittendus erit ad

Archiepiscopum, vel ad Suffraganeum antiquiorem vacante sede archiepiscopali,

vel si de commendandis ad ipsum archiepiscopatum agatur ;ut coetus episco-

palis, consiliis collatis, circa tria nomina alphabetico ordine descripta, quae in

referat, singulis votationibus majorem suffragiorum partem obtinuerint ad S. C,

suamque opinionem tradat, transmisso etiam ipso authentico capitulari actu.

Demum cum contingere aliquando possit, ut canonici legitime impediantur

ne ad capitulum in quo hujusmodi fieri debet commendatio accedant, censuit

S. Congregatio admittendos tune esse eorumdem procuratores ad effectum tan-

ium tradendi schedam cum nomine et praenomine eligendi.1

Caeterum animadvertendum ac declarandum censuit S. Congregatio, his

omnibus contineri tantummodo commendationem, adeo ut. quando necessarium

vel opportunum videatur, Apostolica Sedes suo utatur jure alterum quoque,

praeter commendatos, eligendi.

1Sive, prout postea a S. C. explicatum est, tres schedas, cum nominibus trium virorum pro-

ponendorum. Notandum est generatim quod, sicubi aliqua discrepantia inveniatur, inter

decreta Synod et docutnenta ipsaad

quae referuntmr,hoc inde eveniat,

quodista ab ipsa S. C.

per subsequentes epistolas modificata fuerint. In praxi igitur adhaerendum textui SynodL

N. C. W.





Appendix. 559

46. Hac etiam ratione procedendum erit ad designationem alterius et tertii

candidati. De hisce omnibus instrumentum fiet his terminis.

,,Vacante propter obitum vel . . .

,,R. P. D. Sede N., capitulum sessionem secretam habuit, hac die . . . sub

praesentia R. P. D. Archiepiscopi vel ... in qua post celebratam missam de

Spiritu sancto, electi fuerunt scrutatores R. D . . ., R. D . . ., R. D . . .

,, Facto ter scrutinio constat ex majore numero suffragiorum proponendos

esse S. Sedis judicio viros ecclesiasticos quorum nomina hie ordine alphabetico

describuntur R. D. A. B.- R. D. C. D.- R. D. E. F.

,,Omnia vero peracta fuerunt ad tramites decretorum Sacrae Congregationis

de Propaganda Fide.

,,In quorum fidem has praesentes rite publicatas in capitulo, munitas sigillo

capitular , et sub manu praepositi, secretarii, et scrutatorum, capitulum dari

jussit die . . . mensis . . . anni . . .

A. praepositus. G. }

..Sigil. D. secretatius. M. &scrutatores."

N.)

Triavero exemplaauthentica riant, quorum unum apud Capitulum asservetur,

alterum apud Archiepiscopum, tertium vero ab Archiepiscopo ad Sac. C. de

Propaganda Fide transmitutur.

IX.

HOW SHOULD OUR CONSULTORS AND IRREMOVABLE RECTORS

PROCEED IN THE ELECTION OF BISHOPS?

THE form of electing Bishops to be observed by Cathedral Chapters, as

laid down by Pope Innocent III. and still in force, is as Wows. The election

must take place in one of these three ways : namely, (a) either by secret suffrage

or voting, (b) or by compromise, (c) or by acclamation.* The e ection usually

takes place in the first way, namely, by voting or suffrage.

How is the voting to be conducted? i. When those who have a right to

vote are assembled, they first choose three tellers, whose duty il shall be to

receive, count, and announce the votes. 2. Next the voting itself, wb ch must be

secret, takes place thus:

each voter (a) either writes down his vote on a ticket or

ballot, and hands it to the tellers, (6) or he communicates his vote orally to the

tellers, though in a low voice, so that he may not be heard by the other voters;

in this case, the tellers must at once write down the vote given orally. 3. When

all have voted, the tellers count, and announce the entire vote in the presence

of the voters.

If it is founo that no one has obtained a majority of votes of all the voters

present, the voting or balloting must be repeated until some one has obtained

therequisite

majority of votes.

It will be seen that our mode of voting for candidates for vacant Bishopric?

*Cap. 42, de Elect. (I. 6).



560 Appendix.

is in the main* the same as that prescribed by the general law and described

above. From this it will also be seen that, with us, if after the vote has been

taken it is found that the candidates have not received the requisite majority of

votes, the voting must be repeated until three candidates have each received

a majority of all the votes present. No candidate can be placed on the list unless

he has received a majority of votes of all the voters present.

X.

MODE OF ELECTING BISHOPS AS PRESCRIBED BY THE GENERAL

LAW OF THE CHURCH, AND AS STILL IN FORCE.

THIS mode is laid down in the following decretal issued by Pope Innocent

III. in 1215 :

"

Quia propter diversas electionum formas, quos quidem invenire

conantur, et multa impedimenta proveniunt, et magna pericula imminent

Ecclesiis viduatis : Statuimus, ut cum electio fuerit celebranda, prsesentibus

omnibus qui debent, et volunt, et possunt commode interesse, assumantur tres

de collegio fide digni, qui secrete et sigillatim vota cunctorum diligenter exqui-

rant,et in

scriptisredacta mox

publicent

in communi : nullo prorsus appella-

tionis obstaculo interjecto : ut is collatione habita eligatur, in quern omnes, vel

major et sanior pars capituli consentit. Vel saltern eligendi potestas aliquibus

viris idoneis committatur, qui vice omnium Ecclesiae viduatae provideant de

pastore. Aliter electio facta non valet : nisi forte communiter esset ab omnibus,

quasi per inspirationem, absque vitio celebrata. Qui vero contra praescriptas

formas eligere attentaverunt, eligendi ea vice potestate priventur.

"

i. Illud autem penitus interdicimus, ne quis in electionis negotio pro-

curatorem constituat, nisi sit absens in eo loco, de quo debeat advocari, justoque

impedimento detentus venire non possit : super quo, si opus fuerit, fidem facial

juramento : et tune si voluerit, uni committal de ipso collegio vicem suam.

"

g 2. Electiones quoque clandestinas reprobamus, statuentes, ut quam cito

electio fuerit celebrata, solemniter publicetur."

* Cone. PI. Bait. III., n. 15, i, ii, iii.



Appendix. 561

XI.

DECREE OF THE SACRED CONGREGATION OF PROPAGANDA FIDE APPOINTING MOST REV. ARCHBISHOP SATOLLI TEMPORARY DELEGATE APOS

TOLIC IN THE UNITED STATES.

DECRETUM.

Quo controversiae, quas inter Epiycopos et sacerdotes amplissimae Statuum

Foederatorum ditionis adesse contingit, promptiori faciliorique ratione componj

possint, citiusque iis sublatis tranquillitas, quae turbari per eas solet, in Dioecesi-

bus restituatur, peropportunum visum est huic Consilio Christianae Fidei Propa-

gandae, occasione capta commorationis R. P. D. Francisci Satolli Archiepiscopi

Naupactensis in supradicta Respublica eidem quoad illic fuerit, commissariamfacultatem facere memoratas controversias cognoscendi componendique, omni

appellatione remota, et servata tantum in substantialibus judicii forma, duobus

tamen semper adhibitis adsistentibus spectatissimis e clero in singulas vices deli-

gendis. Quam sententiam Ssmo. D. N. Leoni XIII. relatam ab infrascripto

ejusdem S. Congregationis prosecretario in audientia diei 30 superioris mensis

Octobris, Sanctitas sua benigne adprobait ratamque habuit, eaque super re

praesens Decretum confici jussit.

Datum Romae, ex sedibus S. Congregationis de

PropagandaFide die

3 Novembris 1892.

M. CARD. LEDOCHOWSKI, Praef.[Locus Sigilli. 1 . . Tr A. LARISSEN, Prosecretartus.

XII.

BRIEF OF POPE LEO XIII. ESTABLISHING A PERMA

NENT APOSTOLIC DELEGATION IN THE UNITEDSTATES.

LEO XIII., POPE, TO HIS VENERABLE BROTHER, FRANCIS

SATOLLI, TITULAR ARCHBISHOP OF LEPANTO.

VENERABLE BROTHER : Greeting and apostolic blessing. The apostolic

office which the inscrutable designs of God h ive laid on our shoulders, unequal

though they be to the burden, keeps us in frequent remembrance of the solicitude

incumbent on the Roman Pontiff to procure with watchful care the good of all



562 Appendix.

the churches. This solicitude requires that in all, even the remotest, regions the

germs of dissension be weeded out, and the means which conduce to the increase

of religion and the salvation of Christian souls be put into effect amid the sweet

ness of peace. With this purpose in view we, the Roman Pontiff, are wont to

send from time to time to distant countries ecclesiastics who represent and act for

the Holy See, that they may procure more speedily and energetically the good,

prosperity, and happiness of the Catholic peoples.

For grave reasons the churches of the United States of America demand of

usspecial

care andprovision.

Hence we came to the conclusion that an apos

tolic delegation should be established in said states. After giving attentive and

serious consideration to all the bearings of this step, and consulting with our

venerable brothers, the cardinals in charge of the Congregation for the Propaga

tion of the Faith, we have chosen you, venerable brother, to be entrusted with

such delegation. Your zeal and ardor for religion, your wide knowledge, skill

in administration, prudence, wisdom, and other remarkable qualities of mind

and heart, as well as the assent of the said cardinals, justify our choice.

Therefore, venerable brother, holding you in very special affection, we, by

our apostolic authority and by virtue of these present letters, do elect, make, and

declare you to be Apostolic Delegate in the United States of America, at the

good pleasure of ourself and this Holy See. We grant you all and singular

powers necessary and expedient for the carrying on of such delegation. We

command all whom it concerns to recognize in you as apostolic delegate the

supreme power of the delegating Pontiff;we command that they give you aid,

concurrence, and obedience in all things ;that they receive with reverence your

salutary admonitions and orders. Whatever sentence or penalty you shall de

clare or inflict duly against those who oppose your authority we will ratify, and

with the authority given us by the Lord will cause to be observed inviolably

until condign satisfaction be made, notwithstanding constitutions and apostolic

ordinances, or any other thing to the contrary.

Given at Rome, in St. Peter s, under the Fisherman s Ring, this twenty-

fourth day of January, 1893, of our Pontificate the fifteenth year.

(Signed)

[Seal of Ring.] SERAFINO, Cardinal VANNUTELLI.

{Secretary of Briefs.}



CONTENTS.

BOOK I. ON ECCLESIASTICAL PERSONS.

PART I.

FAGS

On the Principles of Ecclesiastical Law, ... 7

CHAPTER I.

On the Name, Definition, etc., of Canon Law, . . 7

Art. I. Various Meanings of the termJits, .... 7

Art. II. Division of Law in general, ..... 7

Art. III. What is Canon Law ?g

Art. IV. Division of Canon Law, 10

CHAPTER II.

On the Sources of Canon Law("

De Fontibus Juris

Canonici"),

. . . . . . .11Art. I. How many Sources of Canon Law are there ? . . nArt. II. i. Of S. Scripture as a Source of Canon Law, . . 13

Art. III. 2. Of Divine Tradition as a Source of Canon Law, . 14

Art. IV. 3. Of the Law enacted by the Apostles as a Source of

Canon Law, ....... 14

Art V. 4. Of the Teaching of the Fathers as a Source of

Canon Law, ..... . 16

CHAPTER III.

5. Of the Decrees of the Sovereign Pontiffs as a Source

of Canon Law,.

.17^rt I. Nature of the Power of the Roman Pontift. . 17

563



Contents.

MMArt. II. Of the Acceptance of Pontifical Laws, ... 19

Art. III. Of the Exercise of the Pontifical Authority, . . 22

Art. IV. Of the requisite Promulgation of Pontifical Laws, . 23

Art. V. Various kinds of Papal Letters or Constitutions, . 26

Art. VI. Of Rescripts (De Rescriptis),28

CHAPTERIV.

6. On the Decrees of Councils as a Source of Canon

Law, 32

Art. I. Of Oecumenical Councils,...... 32

Art. II. Of Particular Synods, whether National, Provincial, or

Diocesan, especially in the United States, . . 34

CHAPTER V.

7.On the Roman Congregations as a Source of Canon

Law, ......... 40

Art. I. Force of the Decisions of the Sacred Congregations, . 40

CHAPTER V

8. On Custom as a Source of Canon Law, . . 43

Art. I. Nature and Division of Custom, . . . 43

Art. II. Essential Conditions of Custom, . . . . 45

Art. III. Effects and Abrogation of Custom, .... 49

CHAPTER VII.

On National Canon Law (De Jure Canonico No-

tionali), .... .... 51

Art. I. Nature and Essential Conditions of National Canon

Law, . 5 1

Art. II. Of the National Canon Law of the United States, . 53

CHAPTER VIII.

On Privileges ("

De Privilegiis "),. . r .

. 56

Art. I. Nature, Division, etc., of Privileges, . 56

CHAPTER IX.

On the History of the Common Canon Law, or of the

Canon Law of the Entire Church, . . . 63



Contents. 565

PACB

Art. I. Of Collections of Canons in genera (" Collections Co-

nonum"},..... "3

Art. II. Of the State of Canon Law in the Oriental Church

Eastern Collections, . . . . 66

Art. III. History of Canon Law in the Latin Church Collec

tions of Dionysius Exiguus, Isidore Mercator, Gra-

tian, eta, ..... . 67

CHAPTER X.

History of Particular or National Canon Law His

tory of Canon Law in the United States, . . 74

CHAPTER XL

Rulae for the Construction of Laws, ....79

PART II.

Of Persons pertaining to the Hierarchy of Jurisdic

tion ingeneral

thatis,

of Ecclesiastics as vested

with J- urisdictio Ecdesiastica in general, . . . 81

CHAPTER I.

Definition of the Church Meaning of the word

"

Hierarchy"in general,

81

CHAPTER II.

Nature and Object of Ecclesiastical Jurisdiction, . 85

Art. I. Difference between the Power of Jurisdiction and that

of Order 85

Art. II. What is the precise Extent or Object, i, of the" Po-

tcstas Ordinis" ; 2, of the"

Potesta Jûrisdic-

tionis" 88

CHAPTER 117.

Division of Ecclesiastical Jurisdiction, . 93



566 Contents.

CHAPTER IV.

PAGi

Mode of Acquiring Ecclesiastical Jurisdiction in gene

ral,..... ... 97

Art. I. Of the Subject of Ecclesiastical Jurisdiction, . . 97

Art. II. Of the Requisite Title to Jurisdiction ("

Titulus jpuris-

dictionis"),

........98

CHAPTER V.

Mode of acquiring Ecclesiastical Jurisdiction in par

ticular Manner of acquiring"

ûrisdictio Dele-

gafa,"......... ioi

CHAPTERVI.

Mode of acquiring"

Jurisdictio Ordinaria," . . 106

Art. I. Of the Institution or Establishment of Offices to which

Eccl. Jurisdiction is attached("

Comtitutio Officio-

rumEccl."),

........ Io6

Art. II. Erection of Parishes" Per Viam Creationis," especially

in the U. S., ........ no

Art. III. Erection of Parishes"

Per Viam Dismembrationis"

Division of Parishes, especially in the U. S., . . 115

Art. IV. Erection of Parishes" Per Viam

Unionis,". .122

CHAPTER VII.

On Appointments to Ecclesiastical Offices("

Insfitutio

Canonica"),. . ..... 127

Art. I. Of Appointments in general, ..... 127

Art. II. Of Appointments in particular, ..... 135

i. Of Election, ........ 135

2. Of Postulation,........ 140

3. Of Presentation and Nomination, . . . .141

4. Of Appointments proper (Collatid),.... 142

Art. III. Mode of electing the Sovereign Pontiff Constitution

of Pope Plus IX., Dec. 4, 1869, .

. .145Art. IV. Of Appointments n Prelaticnl Offices Mode of Ap-



Contents.56;

PAGB

pointment to Bishoprics, especially in the United

States, Canada, Ireland, England, and Holland, . 149

Art. V. Of Appointments to Non-Prelatical Offices Appoint

ments to Parishes, especially in the United States, . 160

Art. VI. Installation("

InstitutioCorporalis"}.

. . .164

CHAPTER VIII.

On the Qualifications required in Persons who are to

be appointed to Ecclesiastical Dignities and Of

fices("

De Qualitatibus in Promovendis" etc.), . 166

Art. I. Of the Requisite Qualifications in general, . . 166

Art. II. Is it necessary to appoint to Bishoprics or Parishes a

PersonaDignior"

in preference to a "Persona

Digna"? 168

CHAPTER IX.

When and How a Person may lose Delegated Juris

diction("

De Cessations Officii Judicis Delegati"),. 172

CHAPTER X.

When and How a Person may lose an Eccl. Office,

and therefore Ordinary Jurisdiction ("

De Cessations

Jurisdictionis Ordinariae et Vacatione Officiorum

Ecclesiasticorum"},. . . . . .174

Art. I. Of Resignations (Dimissio, Renuntiatio), . . 174

Art- II. Of Transferring Ecclesiastics, also in the U. S.,from

one Place to another( Translatio] , . . . 180

Art. III. How Ecclesiastics, also in the U. S., are removed

from Office (Privatio), . , . . . .187i . How Irremovable Incumbents are dismissed from Office, 1 88

2. Causes and Manner of dismissing Irremovable Rectors,

also in the United States, . . . . .1913. Offences for which Irremovable Rectors may be de

prived of their Parishes, also in the United States, . 192

4. For what causes and in what manner Rectors, also in

the U. S., who are not irremovable, may be dismissed, 196



Contents.

CHAPTER XI.

MMRestrictions upon Eccl. Jurisdiction Exemptions of

Religious Communities from the Jurisdiction of Bi

shops and Pastors, especially in the United States, . 202

CHAPTER XII.

Rights and Duties of those who are vested with Ec

clesiastical Jurisdiction, ...... 215

Art. I. Rights of Ecclesiastical Superiors in general {Obedien-

tia etReverentia), . . . . . . .215

Art. II. Canonical Precedence, how regulated (Mq/oritas et

Praecedcntia), . . . . . . .217Art. III. Excesses committed by Bishops or Prelates in the Ex

ercise of their Authority (Abusus Jurisdictionis

Eccl.]

Of appeals, . . . . . .219Art. IV. Appeals to the Civil Power against the Excesses of

Ecclesiastical Superiors (De Appellatione Tanquam

ab Abusu), 226

PART III.

Of Persons pertaining to the Hierarchy of Jurisdiction

inârticular

thatis,

of Ecclesiastics as vested

with "

Jurisdictio Ecclesiastica" in particular, . . 232

CHAPTER I.

On the Sovereign Pontiff, . . . . . .232Art. I. Of the Roman Pontiff in general, .... 232

Art. II. Of the Primacy of the Roman Pontiff, especially ac

cording to the Vatican Council, .... 233

CHAPTER II.

Prerogatives of the Sovereign Pontiff, . . . 241

Sect. I. Rights of the Roman Pontiff in"Spiritual Matters," . 241



Contents. 569

PAGB

Art. I. Rights of the Roman Pontiff flowing immediately ftoni

his Primacy Papal Infallibilityas denned by the

Vatican Council and Supreme Legislative Au

thority, 241

Art. II. Rights of the Roman Pontiff flowing mediately from

his Primacy, 245

i. His Rights relative to the Various Dioceses of

Christendom, . . . . . . -2452. His Rights respecting Bishops, 24 j

3. His Rights in regard to the Church as a whole, . 348

Art. III. Rights of the Pope as Bishop, Metropolitan, Primate,

and Patriarch, . . . . . . -250Sect.II. Rights of the Supreme Pontiff in "Temporal Mat

ters," 251

Art. I. Various Opinions on this Head Direct and Indirect

Power, . . . . . . .

251

Art. II. Relation of Church and State, 2 r^

Art. III. The Deposing Power, . . . . . -258Art. IV. Temporal Principality of the Pope, .... 259

CHAPTER III.

On the Assistants of the Supreme Pontiff The " Curia

Romano," 262

Sect. I. Assistants of the Pope"

intra Curiam," . . . 263

Art I. Of Cardinals, ... .... 263

i. Origin, Appointment, and Number of Cardinals, . 263

2. Rights and Duties of Cardinals, .... 266

3. The College of Cardinals as a Corporation, . . 269

4. Consistories, 270

Art. II. The Congregations of Cardinals (Sacrae Congrega-

tiones),. 270

i. The Congregatio Consistorialis, . . . . .2712. The Congr. S. Officii or Inquisitionis, .... 272

3. The Congr. Indids The Imprimatur in the United

States, : 273

4. The Congr. Concilii, 277



57o Contents.

PACE

5.The Congr. de Prop. Fide .- its Relations to the United

States, ..... ... 278

6. The other Congregations, . . . . . .281Art. III. Of the Roman Tribunals, . . ... 285

Sect. II. Ministers of the Pope"

extraCuriam,"

. . . 296

Art. I. Of Legates and Nuncios Powers of the Apostolic

Delegatein the

United States,

....297

&.rt. II. Of Apostolic Vicars, Prefects, Commissaries, and Pro-

thonotaries, . . . . . . . -319

CHAPTER IV.

On Patriarchs, Primates, and Metropolitans, . . 322

Art. I. Patriarchs, ........ 322

Art. II. Primates,

..........323

Art. III. Metropolitans The Pallium, ..... 324

CHAPTER V.

On Bishops Their Rights and Duties, especially in

the U. S., 329

Sect. I. Rights and Duties of Bishops in general, . . . 329

Art. I. General Powers of Bishops, . . . . 329

Art. II. Are Bishops the Successors of the Apostles ? From

whom do they hold ? . . . . . 331

Sect. II. Rights and Duties of Bishops in particular, . . 336

Art. I. Duty of Residence, ....... 336

Art. II. Duty of visiting the Diocese (Episcopalis Visitatio), . 339

Art. III. Obligation of visiting the Holy See(Visitatio Sacro-

rum Liminuni}, . ...... 343

Art. IV. Duties in regard to the Management of Ecclesiastical

Seminaries Of Seminaries in the U. S., . . . 343

Art. V. Rights and Duties of Bishops in regard to the Hold

ing of Diocesan Synods, ..... 349

Art. VI. Legislative, Judicial, Executive, and Teaching Power

of Bishops, . . . . . . .35 2

Art.VII. Power of Bishops to grant Dispensations, . . 354

Art.VIII. Powers of Bishops as to various Matters respecting

the Liturgy of the Church, . . . . -357



Contents.

Art. IX. Rights and Duties of Bishops in regard to the

Sacrament of Confirmation, .... 359

Art. X. Rights and Duties of Bishops respecting Causes

of Heresy, . . : . . . .361Art. XI. Power of Bishops to reserve Cases, . . . 364

Art. XII. Power of Bishops over Ecclesiastics, . . . 366

i. Power of Bishops over the Diocesan Clergy, es

pecially in the U. S., (Third PI. C. Bait.), . 366

2. Power of Bishops over Extraneous Ecclesiastics, . 369

Art. XIII. Powers of Bishops, especially in the U. S., con

cerning Indulgences, ..... 374

Art. XIV. Rights and Duties of Bishops in regard to

Relics, ...... -375Art. XV. Rights and Duties of Bishops respecting Stipends

of Masses; the Reduction of the Number of

Founded Masses; other Pious Legacies, . . 377

Art. XVI. Rights and Duties of Bishops concerning the

Taxes of the Episcopal Chancery Taxes for

Dispensations in the U. S., . . . . 382

Art. XVII. Right of Bishops to appoint Assistant Priests and

assign them a sufficient Maintenance Division

of Perquisites in the U. S., . . . . 385

Art. XVIII. Rights and Duties of Bishops relative to Preaching,

Offering up the Sacrifice of the Mass, and Ad

ministering Church Property, .... 387

Art. XIX. Right of Taxation as vested in the Bishop Contri

butions made to Bishops in the United States (De

yuribus Utilibus Episcopornni),. .

. .

388

Art. XX. Prerogatives of Honor of Bishops (Jura Honori-

fica),. .... 392

CHAPTER VI.

On the Various Classes of Bishops, and of Prelates

having Quasi-Episcopal Jurisdiction, . . . 394

Art. I. Of Auxiliary Bishops, ......394

Art. II. Of Coadjutor Bishops, ...... 395



572 Contents.

PAGE

Art. III. Of Regular Bishops, 399

Art. IV. Of Inferior Prelates, ...... 400

CHAPTER VII.

On the Assistants or Vicegerents of Bishops in the

Exercise of Episcopal Jurisdiction, . . . 401

Art. I. Of Vicars-General, especially in the U. S., . . 401

i. What is meant by a Vicar-General ? . . . . 401

2. Appointment of the Vicar-General, .... 405

3.Powers of the Vicar-General, . . . . . 409

Art. II. Of Archdeacons and Archpriests, .... 415

Art. III. Of Rural Deans, 416

CHAPTER VIII.

Administration of Vacant Dioceses (Administratio Dioe-

cests, Sede Vacante), . . . . . .418Art. I. Administration of Vacant Dioceses where the Jus

Commune obtains, . . . . . . . 4 1 "

i. Upon whom the Administration of a Vacant Diocese

devolves,4*8

2. Powers vested in the Chapter or Vicar-Capitular,

"Sede Vacantc,"422

Art. II. Administration of Vacant Dioceses in the United

States, (Third PI. C. Bait.) 425

CHAPTER IX.

Rights and Duties of Parish Priests and Rectors in the

u. s., .429Art. I. Nature of the Office of Parish Priests as at present

understood, ........ 4 29

i. Errors respecting the Origin of Parish Priests, . . 4 29

2. Correct View of the Nature of the Office of Parish

Priests Status of Rectors in the U. S., . . . 43

3. Canonical Formation and Suppression of Parishes, es

pecially those with the"

Jûs Patronatus" . , 439



Contents. 573

4. Manner of Appointing Irremovable Rectors, also in the

United States Competitive Examinations or Con-

cursus. The Third Plenary Council of Baltimore, . 442

Art. II. Rights of Rectors, especially in the United States, . 450

i. General Remarks, ....... 450

2. Rights of Rectors relative to the Sacraments, . . 4511

3. Rights of Rectors respecting Funerals Cemeteries in

the U. S. (Third PI. C. of Baltimore), . . . 462

4. Rights of Parish Priests concerning Parochial Func

tions, also in the United States, .... 465

Art. III. Duties of Rectors, especially in the United States, . 466*

CHAPTER X.

On Assistant Priests, Chaplains, and Confessors, . 474

Art. I. Of Assistant Priests and Chaplains, .... 474

Art. II. Of Confessors, 477

i. Of Confessors who are neither Canonical Parish

Priests nor Vicars-General nor Regulars, . . 477

2. Of Confessors who are Vicars-General and Canonical

Parish Priests, . . . 47&

3.Of Confessors who are Regulars, . 479

4. Confessors of Nuns, especially in the United States, . 48

c. Of Confessors in relation to Reserved Cases Of Re-*J

servations and Censures as in force at present, ac

cording to the" C. Ap. Sedis" of Pope Pius IX.

Special Powers of Bishops in the U. S. concerning

Papal Reservations, ...... 483

PART IV.

The New Diocesan Consultors, according to the Third

Plenary Council of Baltimore, .... 49 2



574 Contents.

CHAPTER I.

PACK

History and Organizations of Bishops Councils, also

in the United States, ...... 493

Art. I. Origin and History of Bishops Councils, also in the

United States, ....... 493

Art. II. Organization of Bishops Councils, also in the United

States,

........ 494

Art. III. Appointment and Removal of our present Diocesan

Consultors, ....... 496

CHAPTER II.

Rights and Duties of our Diocesan Consultors, We

plena, ........ 498

Art. I. Advice of the Consultors in the calling and promul

gating of Diocesan Synods, ..... 499

Art. II. Advice of the Consultors in the division of Missions, . 5O1

Art. III. Their Advice in the giving of Missions to a Religious

Community, . . . . . . .504Art. IV. Their Advice in the Appointment of Seminary Depu

ties, ......... 506

Art. V. Their Advice in the Appointment of New Consultors

and of Synodal Examiners. How our Synodal

Examiners are appointed, ..... 507

Art. VI. Their Advice in the Alienation of Church Property ;

Rules for these Alienations, . . . . 513

Art. VII. Their Advice in the Imposing of a New Tax for the

Bishop, . . . . . . . .518

Art. VIII. Their Advice in the remaining Cases, . . .

519Art. IX. Meetings of these Consultors, 519

CHAPTER III.

Rights and Duties of our Consultors while the See is

Vacantv 521



Contents. 575

PAGIl

Art. I. Appointment of the Administrator, . . . . 521

Art. II. When the Administrator must take the Advice of the

Consultors, . . . . . . . .522Art. III. Rights of the Consultors in the Election of the New

Bishop, . -5 2 3

SUPPLEMENTARY NOTES.

Mode of quoting from the Corpus Juris Canonici Appeals

Sentences ex informata conscientia, etc., etc., . . . 524

APPENDIX.

I.

The Constitutio "Apostolicae Sedis"

of Pope Pius IX. (Oct. 12,

1869), together with the Papal Reservations published

after this Constitution, 536

II.

Decree of the S. Poenit. (Jan. 16, 1834) as to when Persons

excused from Fasting, by reason of Age or Labor, may

eat Meat "

toticsquoties" 544

III.

The "Instructio"

of the Holy See, recently sent to our Bishops,

concerning Public Schools in the United States, . . 545

IV.

The Profession of Faith of Pius IV., as Amended by Pope Pius

IX. so as to include a Profession of Faith in the Dogmas

denned by the Council of the Vatican, particularly in re

gard to the Papal Primacy and Infallibility, . . . 548



576 Contents.

V.

A Synopsis of the recent Instruct of the Holy See De Titulo

Ordinationis, issued by the Propaganda, April 27, 1871, for

Missionary Countries, . . . . . . 55

VI.

A Synopsis of there cent Instructio De Visitatione SS. Liminum,

issued by the Propaganda on June i, 1877, . . 551

VII.

Mode of choosing Bishops in Ireland, . . . . 553

VIII.

Manner of choosing Bishops in England, . . . -557

IX.

How should our Consultors and Irremovable Rectors proceed

in the election of Bishops, ...... 559

X.

Mode of Electing Bishops as prescribed by the General Law of

the Church, and as still in Force, 560

XL

Decree of the Sacred Congregation of Propaganda Fide appoint

ing Most Rev. Archbishop Satolli Temporary Delegate

Apostolic in the United States, . 56 r

XII.

Brief of Pope Leo XIII. establishing a Permanent Apostolic

Delegation in the United States, . . . . .561



INDEX.

(The figures indicate the marginal numbers^

4bstinence. V. Fast.

Administrators. Of vacant dioceses in the U. S., by whom appointed, their

faculties, 379 ;can probably accept resignations of pastors, 382.

American canon law. Definition of, 106; opinion of Kenrick on, 107 ; may

be legitimate, 109 ; history of, 165-169 ;how does the Church act with regard

to national customs? 108, v. National ca:wn laiv.

Apostolic prefects, 524 ; commissaries, 525 ; prothunotaries, 526.

Apostolic letters or constitutions. V. Papal letters.

Apostolicae Sedis Const, of Pope Pius IX., 678-684; Appendix, p. 423.

Appeals, Judicial and extra-judicial, 443 ;are lawful in the U. S., ib.

;

when they can be made, when not, 444-449 ;what are appeals

"

in suspen-

sivo"

and"

in devolutivo"

? 446 ;who may appeal, 450 ;

from whom is it law

ful to appeal? ib.;how and to whom to appeal, 451-453 ;

it is always allowed

to appeal directly to the Pope, 452 ;within what time to be made, 453 ; appeals

against acts of the bishop on visitation, 555.

Appeals to the civilpower (app;llatio ab crbuszi). Meaning of, 454 ; are unlaw

ful, 455 ;also to priests in the U. S., 456, v. Ecclesiastics.

Appointments to civil offices in the U. S., 354.

Appointments to ecclesiasticaloffices. Meaning of, 283; can be made only by

the ecclesiastical authorities, not by lay persons, 285, 286;when to be made in

writing, when not, 294, 364 ;various modes of, 296 (v. Election, Postulatlon, etc.) ;

how appointments proper differ from elections, nominations, etc., 318, 3x9,

difference between absolute and conditional right of making, 320 ;when to be

made, 364.

Appointment of bishops. Belongs to the Holy See, 321 ; enquiries to be

made into the qualifications of candidates, especially in the U. S., 323-326 ;

how bishops are appointed in the U. S., 345-348 ;in Canada, Ireland, Eng

land, and Holland, 350; what voicehave Consultorsand Rectors in theU. S. in

the, 349 ;the presentation to the Holy See of candidates, as made in the U. S.,

Canada, Ireland, England, and Holland, has merely the force of a recommen

dation, 347, 353.

Appointments to parishes. Power of making, as vested in the Pope, 356-

360; in bishops, particularly in the U. S., 360, 362, 363 ;in cardinals, 361.

577



578 Index.

Approbation fo< confessions. What is meant by, by whom given, how with

drawn, 672; not required by vicars general or canonical parish priests, 673;

received by regulars directly from the Pope, 674.

Archdeacons. Former and present powers of, 631 ; superseded at present

by vicars general, ib.

Archpr ests. Former and present powers of, 631.

Assistantpriests. The bishop may compel pastors to take, 604 ;how many

kinds of, 670 ; by whom appointed, powers of, ib.

Auxiliary bishops. What is meant by, 613.

Banns. Of matrimony, to be published, also in the U. S., 658 ;in both

parishes, if one of the parties belongs to one, the other to another parish, ib.

Binatio. In the U. S., v. Mass.

Bishoprics. Established first by the apostles, 246 ;afterwards by the Pope,

or at least with his consent, 247 ;unition of, belongs to the Pope, 274 ; per

sons elected or nominated to, cannot administer the see before they have

received and shown the bulls of their appointment, 287-293 ; otherwise they

incur excommunication now reserved in a special manner to the Holy See

637, note 33 ;can administrators of dioceses in the U. S. continue to adminis

ter the vacant see, even after they have been recommended to the Holy See for

the see ? 293.

Bishops. Power of, to relax decrees of provincial and national councils, in

particular cases, 173 ;formulas to be observed by, in granting dispensations

or faculties by virtue of Papal indult, 240 ;whether they hold immediately of

God or the

Pope, 242,540; theyare all

equal,

"

juredivino," 244; cannot exer

cise any act of episcopal jurisdiction before they have received and exhibited the

Papal letters of their appointment, 293 ;of the U. S. not appointed in consis

tory, 322 ;how elected at various times, 339-342 ;

election of, at present re

served to Pope, except in some parts of Germany, 321, 343 ; resignation of,

twofold, 383 ;what is meant by a bishop, 534 ;

the"

potestas jurisdictionis,

ordinis et magisterii" of, 535, 536 ;are superior to priests, how, 537, 538 ;

how

successors of the apostles, 539 ;have immediate jurisdiction in their dio

cese, 541.

Rights and duties of, duty of residence, particularly in the U. S., 544,

549 ;how long and for what causes they may be absent from their diocese,

545 ; penalties of unlawful absence, 548 (v. Residence) ; duty of visiting the dio

cese, 550 sq. (v. Visitation); duty respecting seminaries. 557 (v. Seminaries)}

legislative, judicial, coactive, and teaching power o^ 568-570 ; power of, in re-

gard to liturgy, 573 ; privileges of, 611.

Various classes of, 612; auxiliary bishops, 613 ; coadjutor bishops,

614 sq. ; regular bishops, 617.

In the U. S. can delegate their Papal faculties Extr. D. and E. to thcii

icars jfeneral and two or three worthy priests of the diocese, 627 ; special fa-



Index. 579

culties of bishops in the U. S. to absolve from cases reserved to the Holy

See, 684.

Blessed Sacrament. In what churches or chapels to be kept, 573.

Burial. Rights of pastors in regard to, 661, v. Cemetery.

California. Canonical parishes in some parts of, 654.

Canada. By whom assistant priests are appointed in, 670 ; appointment

of

bishopsin, V.

Appointments.Canons. Collections of, history of, 130-132 ;

character of, 133-137 ;eastern

collections, 141-147 ;western or Latin, 147-165 ;

canons of faith, morals, and

discipline, 137-141.

Cardinal*. What is meant by, 487; are they of divine institution? 488;

how appointed, 489 ; requisite qualifications of, 490 ;orders of, 491 ;

number

of, 492 ; rights of, 493 ;duties of, 494 ; insignia of, 495 ;

how addressed, ib.

the college of, 496 ;

"

reservati inpetto," 497.

Care. Of souls (cura animatuni), how many kinds of, 642.

Cases Reserved at present to Pope, without censure, 681;with censure,

especially according to the"

C. A p. Sedis" of Pius IX., ib.

Reserved to bishops, how many kinds of, 582, 682;what cases are re

served to bishops by the"

C. Ap. Sedis," 683 ;does ignorance excuse from?

678 ;can regulars absolve from ? 679, v. Reserved cases, Reservations

Cathedraticum. In the U. S., 400, 610.

Causae majores. What is meant by, 475.

Causes. Ecclesiastical, when they may be brought into civil courts in the

U. S , 456, v. Ecclesiastics.

Cemetery. Right of having, vested in parish churches, etc., 661;what as to

interments of Catholics in the U. S. in non-Catholic cemeteries, ib.;whether

or how it is allowed, particularly in the U. S., to charge anything for single

graves or family lots, 662.

CAancery. Êpiscopal, in the U. S., 603, v. Taxes.

Chaplains. Of sisters in the U. S., 363 ;of soldiers, ships, hospitals,

etc., 671.

Chapters.Can be established

only by Pope, 250;

have at

presentthe

rightto elect the bishop only in some parts of Germany, 321.

Church. The, definition and nature of, 181-184 ;is not a mere corporation,

but a sovereign state, 185 ;has coercive power, 201-204 ;

can inflict certain

corporal punishments, 202;form of government of, 463 ;

relation of church

and state, 479-483.

Church property. Obligation of bishops in regard to, 607 ;should be ex

empt from taxation, 669 ; penalties incurred by rulers confiscating, 668; by

persons alienating, ib; by trustees in the U. S. appropriating to their own

uses, 668;

is the Papal permission requisite in the U. S. to alienate? ib.;10

ventorv to be kept of, v. Inventory.



580 Index.

Clandcstinity. Tridentine decree"

Tametsi"

regarding, where published

in the U. S. and Canada, 659, note 113.

Coadjutor-bishop. What is meant by, 614 ;kinds of, ib.

;how appointed in

the U. S., 615 ;for what causes, ib.

; salary of, 616; rights of, ib.

;how theii

powers lapse, ib.

Collections. To be taken in the U. S. for Pope, 485, v. Contributions, Taxes*

Taxation.

Committees. Of cardinals, v. Conglegations of cardinals.

Concordats. Whether binding on the Holy See, 105.

Concursus. When, how made; Third Plenary Council, 647.

Confessors. In the U. S., powers of, 652, v. Nuns, Sisters.

Confirmatio."

In forma communi"

and "

in forma specifica,"what is meant

by, and how distinguished, 170-173, 176.

Confirmation. Sacrament of, ministers and essence of, 576 ; subject of

577 ; sponsors of, especially in the U. S., 578.

Congregation;. Of cardinals (Congregationes Romanae), what is meant by, 75 ;

divided into temporaryand

standing, 76;force of decisions of,

77~$2;

powersof, during vacancy of Papal chair, 494 ; personnel and number of, 498 ;

the

Congr. Consistorialis, 499 ;S. Officii, 500 ; Indicis, rules of the Index, as

applied in the U. S, 501-506 ; Concilii, 506 ; Prop. Fidei, its relations to the

U. S., 507-510 ; Episc. et Regul., 510 ;S. Rit., 511 ;

force of its decisions, 512;

Indulg. et Reliq., 513 ;mode of procedure of all, 514.

Consistories. What is meant by, secret and solemn, how often held, 497.

Construction. Of laws, what is meant by, kinds of, 177, 178; rules for, 179.

Consultors. Diocesan, according to Third Plenary Council, p. 464 sq.

Contributions Q* collections for diocesan purposes, various kinds of, 609 ;

in the U. S., 610.

Corpus juris canonici. Authority and application of, at the present day,

160-163.

Council of Trent. Not received in its entirety in the U. S., 64, 97 ;whether

its disciplinary decrees may be abrogated by customs to the contrary, 97 ;de

crees of, not to be commented upon by authors, 180.

Council of the Vatican. Is part of the"jus novissirnum," 164, v. Vatican

Council.

Councils. Oecumenical, conditions of, 59-60 ;who have the right of suf

frage at, 62;mode of celebrating, 63 ; authority of, especially in canon law

ib.;national councils, v. Synods, Provincial councils.

Curia Romana (Roman Court) The, what is meant by, 486 ;tribunals of,

515 ;the Rota, ib.

;Dataria and S. Poenitentiaria, 516; Papal chancery, 517;

secretaryship of state, of briefs, ib.

Custom. Definition and conditions of. 82-84 ;division of, 84 ;

difference

between custom and prescription, 85;

essential conditions of, 86-94;effect*

oJ -M , abrogation of, 95-100



Index. , 581

Decisions. Or decrees of the Sacred Congregations, v. Congregations oftardinals.

Devises (testamenta ad causas pias, legata pid). For pious uses, what is

meant by, 598 ;can bishops change, ib.

; bishops the executors of, ib.;laws in

the U. S. regarding, ib.

Diocesan synods. What is meant by, 563 ;how often to be held in the U. S.,

564 ; by whom to be attended in the U. S., 565 ;officials of, 566 ; appeals

against decrees of, ib.;statutes enacted in, 568.

Dismissal. Of ecclesiastics from office may take place in three ways, 401 ;

what is meant by privatio, depositio, and degradatio, 402; of bishops, 404; of

canons, 406; of canonical parish priests, 407; of rectors, removable and irre

movable, in the U. S., 648.

Dispensations. Practical rule in the U. S. in regard to, 125 ;what is meant

by, 57 ; when bishops can dispense from the common law of the Church, ib. ;

cause required for, 572.

Domicile. What is meant by, 650 ; quasi-domicile, ib.

Ecclesiastical causes. V. Erclcsiastics.

Ecclesiastical jurisdiction. Meaning and division of, 207-217; extent of,

204-207 (v. Matters] ; subject of, active and passive, 218;how received, 219 ;

title of, is true or false, 221;

"

putativus, fictus, coloratus, or simpliciter nul-

lus," 222-226 ;is it sometimes allowed to absolve with a false title? 225.

"

Jurisdictio delegata," definition of, 226; by whom conferrable, 231 ;

how conferred, when "

ab homine," 235-240 ;how lost, 378 ;

when personal

lapses by the death of the person delegated, ib. (v. Faculties of owbisliops).

"Jurisdictio ordinaria," definition of, 380 ;lost chiefly by resignation

tr.mslation, privation, or dismissal, etc., ib.;how restricted, 421 (v. Exemp

tions) ; rights and duties of persons vested with, 433 ;chief abuses of, 422 ;

remedies against abuses of, 442 (v. Appeals, etc.)

Ecclesiasticaloffices. Definition of, 245 ;

who can establish, 246 ; erection

of. 252 ;divided into major and minor, 355 ;

how acquired, lost, etc. (v. Ap

pointments, Dismissal}; qualifications required for, v. Qualifications.

Eccl-siastics. In contradistinction to laics, 186; may now in many cases

plead and be implcaded in civil courts, 206;causes of, whether and by whom

they may be delegated to laymen. 234 ;not to be brought into civil courts

455; whether ecclesiastics, also in the U. S., should be ordained for a particu

lar church, or merely for the diocese at large, 584 ;cannot leave the diocese

without the leave of the bishop, 585, 586.

Elections. Definition of, 297 ;election by quasi-inspiration, compromise,

and scrutiny or suffrage. 298-302 ;who are to be invited to take part in, 303

308 ;number of votes necessary at, 309 ;

formalities to be observed in, 311 j

what is to be done after, 312, v. Regulars, -.v./j, Pope.



582 Index.

England. Dismissal of pastors in, 648 ; mode of appointment of bishops

in, v. Appointment.

Episiopal office. Essence of, 542, v. Bishops.

Episcopal visitation. V. Visitation.

Exeats. How given to priests in the U. S., 384 ;what is meant by, 587.

Exemptions. Of religious communities, definition of, 421 ;are lawful and

just, 423, 424 ; origin of, 425 ; exemptions from authority of bishops, also in

the U. S., 426-^29 ;of parish priests, 429-432 ;

what as to the U. S., 432.

Ex informata conscientia. What is meant by, 409;

censures inflicted

"

ex

inf.,"in the U. S., 443 ;

no appeal proper against censures"

exinf.,"

445, p. 424.

Extraordinary confessor. Should be given nuns two or three times a year,

must be reappointed each time, unless permanently appointed, 675.

Facttlties. Of bishops in the U. S. from the Holy See are"

delegationes

personales," and consequently lapse at their death, 379 ;to grant dispensa

tions, 570; from the precept of fast, 571.

Fast. Faculties of priests in the U. S. to

dispensefrom, 663.

Fathers. Of the church, teaching of, as a source of canon law, 20.

Fessltr. Secretary to the Vatican Council, views of, regarding the relation

of church and state, 481.

First communion. Of children in the U. S., 666.

Forum. Internum and externum. n. 208.

Funeral dues. For what funeral services pastors, also in the U. S., can re

ceive, 662.

Funeral services. Where held if deceased is buried in a different place

from that where he died, 662.

German parishes. In the U. S., how formed, 641.

Gerson.- -Errors of, regarding parish priests, 640.

Heresy. Who are the judges in matters of, 579 ;when bishops can absolve

from, 580 ;in the U. S., 581 ; penalty of, according to the

"

C. Ap. Sedis" of

Pius IX., 580.

Hierarchy. The, definition of, 187, 188;divine and ecclesiastical, of magis-

terium, order, and jurisdiction, 189.

Imprimatur. To be given by the ordinary, not of the author, but of the

place of publication, 502 ; whether obligatory in the U. S., 505.

Index. Rules of, 502 ;whether obligatory everywhere, even in the U. S.,

503, 504-

Indulgences. What, grantable by bishops, 590 ;in the U. S., 591 ; publica

tion of Papal, ib.

InnocentXI. Pope, decree of, concerning taxes of episcopal chanceries,

599, v. Chanceries.



Index. 583

Inquisition. Or Holy Office, tribunal of, exists at present only in Rome.

579-

Installation. Of pastors, definition and necessity of, 365 ;not customary in

the U. S., 366.

Inventory. Of church goods, to be made by bishops, 607 ; pastors, 668.

Investitures. In the Middle Ages, condemned, 286.

Ireland. Pastors in, how appointed, 647 ; obliged to say Mass for their

congregations, 666;how bishops are appointed in, v. Appointment.

Jurisdiction. V. Eccl. jurisdiction.

Jurisdiction. Of the Supreme Court of the U. S., 217.

Jus. What, i;how divided, 2

t ;the

"jus novissimum," 163-165.

Jus palronatus What is meant by, 646 ;how acquired, ib.

;does not exist

in the U. S., ib. and 315.

Laws. Enacted by the apostles, as a source of canon law, 17-19 ; by the

Pope, v. Pontifical laws.

Legacies. For charitable purposes, v. Devises.

L. gates. How many kinds of, formerly, 519; at present, 520; rights of,

521 ;when the laws of the U. S. respecting ambassadors would be applicable

to Papal legates, 522, 523.

Letters. Dimissory, testimonial, and commendatory, 587, v. Exeats.

Letters. Of the Sovereign Pontiff, v. Papil letters.

Marriages. Of strangers, how priests, especially in the U. S.,should pro

ceed inregard to,

660.

Mass. The sacrifice of the, can bishops, even in the U. S., permit the cele

bration of, in private houses, 574 ;celebration of, by strange priests, 588 ;

expenses for altar-wine, etc., by whom to bo borne, 594 ; obligation of bishops

to offer up, 607 ;where to be heard, 655 ;

when can a priest say two Masses or.

thesame day ? 656 ;in the U. S., Ireland, England, etc., 657. v. Stipends, etc.

Founded Masses. What is meant by, 595 ;not to bo accepted even in

the U. S. without leave from bishop, or (as regards regula; priest s) regular

uperior, ib.;reduction of number of, ib.

;recommendations a? te mock of

accepting in the U. S., 596.

Matters. Difference between temporal, spiritual, and mixed, 205.

Metropolitans. What is meant by, 529 ; powers of, over suffragan bishops,

530 ;over subjects of suffragans, 531-533 ; pallium, 533.

Missionary countries. Remain subject to the Propaganda so long as their

dioceses, one and all, have no complete canonical organization, 507, 508, 524.

National canon laiv. What is meant by. TO &

;how it nu.y ch:a:n, 101

,11

unlawful if not sanctioned by Pope, 102 ;

maybe abolished by Pope, icu, v.

American canon law. Custom.



584 Index.

Nomination. To bishoprics, meaning of, 316 , in the U. S., ib.

Nuncios. V. Legates.

Nuns. Or sisters, not exempted in the U. S., 363, 428 ;confessors of nuns

proper need special approbation, 675, v. Sisters.

Obedience (pbedientia canonica). What it consists in, 434-437 ; promise of, in

ordination, especially in the U. S., 435.

Offices.V. Ecclesiastical

offices.

Papal letters. What is meant by, 44 ; constitutions, decrees, decretal epis

tles, encyclicals, 45 ; rescripts, 46 ;bulls and briefs, 47, 48.

Parishes. Can be erected by bishops, "251, 254; modes of erecting, 253;

nature of, in the U. S., 256; can hold property safely only by conforming to

civil laws, 257 ;can bishops change parishes with removable pastors into par

ishes with irremovable pastors, especially in the U. S. ? 258-261 ;in the U. S.,

not benefices, 261.

Division of, conditions of, 262, 263 ;formalities

required

in the, 265 ;

bishops in U. S. can change limits of, 267; can bishops divide? 262, 268.

Union of, 269 ;is threefold,

"

unio aeque principalis, plenaria, extinc-

tiva," 270-274 ;in the U. S

, 270 ;who can make, 274 ;

conditions of, 275 ;

power to make, restricted by C. of Trent, 276-280 ;disunion of, 280-283.

Origin of, 639 ;are there any canonical parishes in the U. S. ? 641,

645. 654-

Parishioners. What is meant by, 650.

Parish priests. Unknown in the first three centuries, 243 ;transfer of, 391

sq. ;even against their will, 394 ; how dismissed from their parishes, 408-411

(v. Dismissal) ;offences for which canonical parish priests either can be or are

"

ipso facto"

removed, 411-417 ; origin of, 639 ;errors in regard to, 640 ;

what

is meant by, 641 ;are they essentially irremovable ? 643, 644 ;

how appointed,

647 ; obligation of, to say Mass for the people, 666.

Rights of, respecting the sacrament of baptism, 650; penance, 651 ;

Blessed Eucharist, 653 ; marriage, 658 ;Extreme Unction, the Viaticum, 660;

funerals, 661;church property, 667.

Parochial charge. In what it consists, 642.

Parochialfunctions. What is meant by, 663.

Parochial rights. 430 ;not fully possessed in the U. S., 649.

Parochismus. What is meant by, 640.

Paschal communion. Where to be made, 653 ;in the U. S., 651, 653, 654.

Pastors in the U. S. When transferrable even against their will, 395 ;drs-

oussal of, 411 ; removability of, 417, 418 ;can they be removed without cause ?

419, 420; the bishop in the U. S. parochus in habitu" 641; not canonical

parish priests, 645;is it desirable that our rectors should become

parishpriests? \b.; Irremovability of some of our Rectors, 258-261, 646; how ap-



Index. 585

pointed, 647 ; dismissed, 648 ; rights of, 649, 650; not obliged, except in some

parts of California, to say Mass for the people, 657, 666; duty of, to preach,

cavechise the children establish Catholic day-schools, 666.

Patriarchs. Definition of, 527 ; rights of, ib.

Perquisites. Of baptisms, etc., can the bishop divide them between the

pastor and his assistants? 605 ;division of, in the U. S.,6o6.

Pius IX."

Const. Rornanus Pontifex"

by, forbidding bishops elected or

nominated to administer the diocese before they have received and shown the

bulls of their appointment, 637, note 33 ;Const. Ap. Sedis of, in regard to

same, ib.

Pontifical laws. Whether binding on the Church without being accepted,

26-35 promulgation of, 35 ; notification of, 43.

Pope. The, errors in regard to, 21; supreme legislative, etc., powers of,

23, 24, 470; laws of, 26 (v. Papal letters); receives jurisdiction over the entire

Church directly from God, 241 ;elected at present exclusively by the cardi

nals, 328 ;even during an oecumenical council, 338 ;

cannot elect his succes

sor, 329, 457 ; mode of election of, 330-338 ; right of veto of certain govern

ments in the election of, 337 ; insignia of, tiara, etc., 457 ; primacy of, as

defined by the Vatican Council, 458-462 ;is the primacy separable from the

see of Rome? 462 ;does not always act as head of the Church, 464 ;

has imme

diate jurisdiction over the entire Church, ib.;can abdicate, 465 ;

what if he

falls into heresy, 466.

Rights of, in spiritual matters. Mode of determining, 467 ;all essen

tial, 467, 471 ; infallibility, as defined by the Vatican Council, 468 ;when does

the

Pope speak

"

ex cathedra" ?

469;

rightof

demandingfrom

bishopsan ac

count of the state of their dioceses, 472 ;of punishing, granting dispensations,

and receiving appeals, ib.;of appointing, transferring even against their will,

deposing, and reinstating bishops, 473 ;of calling oecumenical councils, ib.

;

ol dividing and uniting dioceses, 474. Rights of, as to canonization of saints,

liturgy, religious orders, indulgences, ib.;

"

causamajores," 475 ; ordinary and

extraordinary power of, ib.;as Bishop of Rome, metropolitan, primate, patri

arch, 476 he cannot depose all the bishops and substitute vicars apostolic in

their stead, 540.

Rights of, in temporal matters. Various opinions, 477 ;what is meant

by his direct and indirect power in temporal matters, 478 ;the Pope has indi

rect power in temporal affairs, 478-483 ; deposing power of, 483 ; temporal

states of, 484.

Ministers of, 486 ;in the curia, 487 sq. ;

out of the curia, 518, v. Le

gates, etc.

Postulalion. Definition of, 313 ;for bishops no longer in use, ib.

;sim

ple, 314.

Potestas jurisdictionis. Is limitable as to time, persons, places, or matters,

193 ;definition of, 199 ;

conferred ty legitimate mission or appointment, 200.



586 Index.

Pobstas ordinis. Is separable and, at least accidentally, distinct from the

"

potestas iurisdictionis," 191-197 ;conferred by ordination, 195 ; precise ex

tent and object of, 197, 198.

Preaching. Obligation of bishops as regards, 609 ;of pastors, 666

;custon

in the U. S. to omit during July and August, ib.

Precedence. General rules of, 438-441 ; particular rules of, 441 ;

"

prae-

rogativa loci"

of Archbishop of Baltimore, 440, 528 ; among priests in the

U. S., 441 ; bishops, 611.

Prelates. Inferior to bishops, what is meant by, classes of, 618.

Presentation. Definition of, 315.

Priests. Strange priests not to be allowed to say Mass without leave from

the bishop or vicar-general, 588 ;how admitted into a diocese in the U. S. if

they come from Europe, 589; how approved for confessions, 673 ; during a sea

voyage, 671.

Pnmates. What is meant by, 528 ;

"

praerogativa loci"

of Archbishop of

Baltimore, v. Precedence.

Privileges.

Definition of, no ;when to be shown to ordinaries when not,

112; how distinguished from dispensations and mere permissions, 115 ;divi

sion of, 114-121 ;how acquired, 122

;lost. 129 ;

force of, 123 ;when they take

effect, 125 ;confirmation of, 126

;use of, 127 ;

how construed, 128.

Profession offaith. To be made, according to the amended form of Pope

Pius IX., by bishops, 326 ;canonical pastors, 664; but not by pastors in the

U. S., ib.

Protestants. How absolved from heresy, 580.

Qualifications, Required for ecclesiastical offices, especially those of bi

shops, pastors, etc., 367 ; requisite age, 368 ; purity of morals, 369 ; learning,

370; lawful wedlock, the clerical state, major orders, 371 ;is it necessary, even

In the U. S., to appoint to bishoprics and congregations the most worthy in

preference to such as are simply worthy ? 372-37?-

Registers. Of baptisms, marriages, interments, and confirmations to be

kept, in the U. S., 669 ;record of Masses, both ordinary and founded, in the

U. S., 597-

Regulars. Exemptions of, especially in the U. S., 421-433 ;when visitable

by the bishop, 553 ;cannot absolve from cases reserved by bishops, 582 ;

cele

bration of Mass in a strange diocese by, 588 ;how eligible to the vicar-general

ship, 625 ; approved by their own superiors to hear the confessions of members

of their order, 674 ; by the bishop, to hear seculars, ib.; can the bishop limit,

their faculties as to time, persons, and places? 674; can regulars, when travel

ling, confess to priests not of their order, and even though not approved ? ib.;

exemptfrom

episcopalreservations. 677.

Regular bishops. From what rules of their order they are released



Index.587

bi7, eligible only with leave of their superior, ib.;dress of, should recite

breviary of their diocese, not order, ib.

Relics. Of saints, what is meant by, 592 ; by whom to be authenticated

and transferred, ib.

Religious communities.--^ . Nuns, Sisters, Regulars.

Removability. What ecclesiastics are removable "

ad nutum"

in the U. S.

and elsewhere, 4/7 ;of pastors in the U. S.

,v. Pastors , of parish priests, v

Parish priests.

Rescripts. What is meant by, 49; division of, 51; vitiated by defect in

persons, petitions or form, 52, 53 ; lapse of, 55-59, v* Papal letters.

Reservations. Conditions of, 677 ;kinds of, Papal, episcopal, and regu

lar, 680.

Reserved cases. What is meant by, 677; who can make, ib.;does igno

rance prevent the incurring of? 678 ;what as to penitent who confesses in an

other diocese, 679 ;sometimes an ordinary confessor, nay, any priest, can

absolve from, 679, v. Cases.

Residence. Of pastors, particularly in the U. S., 665 ; how long, for what

causes, they may be absent, ib.; penalties of unlawful absence, ib.

;of bishops,

they are bound to reside in the diocese, though not in the episcopal city, 544

y. Bishops, Pastors.

Resignat ons. Of ecclesiastical offices, such as those of bishops, pastors,

etc., meaning of, 381 ;must be accepted by the proper superior, 382 ;

to whom t

be made, especially in the U. S., ib.; tacit, express, absolute, conditional. 383

who can resign, 384 ;various kinds of conditional resignations, 385 ;

when

resignationstake

effect, 389;

can rectors in the U. S.

resign? 390.Richer. Errors, regarding the rights of the Roman Pontiff, bishops, and

parish priests, 640.

Roman Pontiff. V. Pope.

Rufal deans. What is meant by, 632 ;duties of, in the U. S., ib.

;are

"

delegati ad universitatem causarum," 230.

Schools. Parochial day-schools should be established, if possible, in every

parish in the U. S., 666; late "Instruction" of the Holy See regarding,

app. p. 432.

Second Plenary Council of Baltimore. Is approved only "in forma commu-

ni," 174 ;hence it is allowed to appeal from its decrees, 175.

Seminaries. History of, 557 ;what is meant by, ib.

;Tridentine decrees

respecting, 558 ;committees on management of, 559 ;

can religious communi

ties be placed in charge of? 560 ;what as to seminaries in the U. S., 561-563.

Sis ers. In the U. S. have but simple vows, except in some houses of the

Visitation, 676 ;are all subject to bishops, none of them being exempt ib f

is a special approbation required to hear ? ib., v. Nuns.

State. Relation of Church to, 479-483.



588 Index.

Sta ns liber. Of parties about to coniract marriage, what is meant

by, 660.

Stipends. Of Masses, to be fixed by the bishop or custom, 593 ;rule in the

U. S., ib.;what if too many are received, ib., 594.

Sunday-schools. In the U. S. to be held, or at least superintended, by the

Castor, 666.

Synods. National, definition of 65 ;cannot be convened in the U. S by

the Archbishop of Baltimore in virtue of his"

praerogativa loci," ib.

Provincial, what is meant by, 66 ; how often to be held, 67 ; but few held

within the last three centuries, 68; except in the U. S., 69 ; persons to be called

to, in the U. S., 70; laymen sometimes admitted to, ib.;decrees of, sometimes

tolerated rather than approved by the Holy See, 72 ; appeals from, lawful, ib;

none of the Prov. C. in the U. S. approved"

in formaspecifica," ib.

;convened

by the metropolitan, or, in his default, by the oldest suffragan, 73, 74.

Diocesan V. Diocesan synods.

Tax. Decree of Innocent XI.regarding

the taxes ofepiscopal chanceries,

599 ;its chief regulation, 600

; chancery fees, especially in the U. S., 600-604 .

taxes for dispensations in the U. S., 603, v. Chancery.

Taxation. Right of, as vested in the bishops of the U. S., 608 sq., v. Con

tributions.

Theological conferences. In the U. S., 567.

Tradition. Divine and human, as a source of canon law, 15, 16.

Transfer. Of ecclesiastics from one place to another to be made by the

proper superior, 391 ; only for sufficient reasons, 392 ;of bishops against their

will, 393 ;of parish priests proper, 394; of rectors in the U. S., 395 ;

effects of,

396-398 ;relative to salary, etc., 398-401.

Trustees. Lay, in the U. S., by whom appointed, 668; what outlays they

can make, ib.

Vacant diocese. What is meant by, 634 ;administration of, belongs to the

whole chapter for the first eight days, and afterwards to the vicar-capitular,*

635, v. Vicars-capitular.

Administrators of, in the U. S., by whom appointed, 638 ; powers of,

especially in the province of Baltimore, ib., v. Administrators.

Vatican Council. The, definitions of, regarding Papal primacy, 459, 460,

462 ;immediate jurisdiction, 464 ; infallibility, 468.

Drafts of decrees {schemata) and proposals (postulata) submitted to,

regarding vicars-general, 625, not. 26, 28, 30 ; 626, not. 40; the administration

of a diocese, when the sedts is imfeditii, 634, not. 3 ; 635, not. 18, 27, 30, 31 ;

Arsons elected or nominated to bishoprics, forbidding them to assume the ad

ministration of the diocese before they have received and shown the bulls of

iheii npointment, 637 not. 33 ;the administration of vacant dioceses in



Index. 589

countries far away from the Holy 866,638, not. 36; restricting the"jus pa

tronatus," 646, not. 42 ; modifying the Tridentine decree relative to parochial

concursus, 647, not. 58 ;in regard to dismissal of pastors, 648, not. 65 ;

modi

fying Tridentine decree" Tametsi

"

on clandestinity, 658, not. 107 ;to mitigate

and render more uniform the laws of the Churchas to fast and abstinence, 663,

not. 138 ;as to public schools, 666, not. 160

;the removal or transfer of pas

tors, 670, not. 6;to reduce the number of cases reserved to the Holy See, 681,

not. 48 ;as to power of bishops respecting Papal reservations, 684, not. 60 ;

enclosure for all nuns or sisters, without exception, 676, not. 33.

Vicars-apostolic, 524.

Vicars-capitular. But one to be elected, 635 ;is irremovable, ib.

;how

elected, ib.;is vested, generally speaking, with the entire ordinary jurisdic-

tion of the bishop, 636-638 ; may probably give"

exeats," 637 ; salary of, ib.j

when his jurisdiction lapses, ib., v. Administrators in the U. S.

Vicars-forane. V. A ural deans.

Vicar-general. What is meant by, 620; is removable "ad nutu*n," 417,

628 ; when jurisdiction of, lapses, 420; is he necessarily vested with the ad

ministration of the diocesan Church property ? 621;what as to the U. S., ib.

;has

"

jurisdictio ordinaria," and that from the common law, 622, 623 ;no appeal

from, to bishop, 624 ; exceptions, ib.; qualifications required in, 625 ;

customs

in the U. S. in regard to, ib.;who can or should appoint, 626

;how appoint

ed, ib.; powers of, especially in the U. S., 627 ;

is he a dignitary or prelate?

628; how he loses jurisdiction, 629; salary of, especially in the U. S., 630;

when is the bishop responsible for the acts of? ib.; by whom punishable, ib.

Vicar-parochial. V. Assistant priests.

Visit ad limina. Duty of bishops, also in the U. S., to make the, 472 ;what

is meant by, and how often to be made, 556; auxiliary bishops not bound te

make, 613.

Visitation. Of diocese, what is meant by, 550 ; obligation of bishops to

make, 551 ;also in the U. S., 552 ; what persons and places are visitable, 553,

554 ; what is to be done after the, 555.

PRINTED BY BENZIGER BROTHERS, NRW YORK.













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